Opinion
3:01-cv-0096-RCJ-VPC.
September 20, 2010
ORDER
Introduction
This action is a petition for a writ of habeas corpus by Billy Ray Riley, a Nevada prisoner sentenced to death. The action is before the court for decision on the merits of Riley's claims. The court will deny habeas corpus relief.
Background Facts and Procedural History
Riley was convicted following a jury trial, in Nevada's Eighth Judicial District Court, in Clark County, of first degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. The jury found there to be aggravating circumstances, and Riley was sentenced to death for the murder. For the robbery, Riley was sentenced, as an habitual criminal, to life in prison without the possibility of parole.
In its decision on Riley's direct appeal, the Nevada Supreme Court described, as follows, the circumstances surrounding the crimes:
Albert "Ramrod" Bollin was killed by a single gunshot wound to the chest on October 1, 1989. The weapon used to kill Bollin was a sawed-off .410 caliber shotgun that belonged to the appellant, Billy Ray Riley. Three persons, Darrell Lee Jackson, Kim Johnson, and Leotis Gordon, were at or near the scene where Ramrod Bollin was shot, and all three testified at trial.
Darrell Lee Jackson told the jurors that sometime after 8:30 a.m. on the morning of the shooting, he and Ramrod Bollin arrived at Leotis Gordon's residence where they met Billy Ray Riley. Riley asked Ramrod Bollin if he had any drugs. Then, all three men proceeded to a bedroom-lounge located in the house.
According to Jackson, appellant Riley was emotional and angry about the treatment he had received from drug dealers, and Riley said he was going to start robbing drug dealers who did not treat him appropriately. Thereafter, Darrell Jackson and Ramrod Bollin gave some rock cocaine to Billy Ray Riley, and Riley smoked the cocaine while Ramrod Bollin went into the bathroom to take a shower. Jackson testified that while Ramrod Bollin was in the shower, Riley began to ask about the money and drugs Ramrod Bollin had in his possession.
When Ramrod Bollin finished his shower, the three men went into Ramrod's room. Ramrod Bollin sat on the dresser facing Riley who was sitting on a bed. Riley was holding the shotgun and Jackson was standing near Ramrod toward the middle of the dresser. At that point, Jackson testified that Billy Ray Riley killed Ramrod Bollin:
Q Was there some conversation between Billy Ray Riley and "Ramrod" at that time?
A Yes. Billy asked him whose dope he had and "Ramrod" said "it's none [sic] mine." So Billy Ray say "it's mine now," you know.
And "Ramrod" said, "no, dude. You know you're going to have to kill me first, you know."
And so Billy Ray asked him "was he ready to die?" he said, "all right. Let me finish taking this hit, you know."
And after he — after he smoked the dope, then he put down his pipe, he asked him whether he was ready to die. He said "yeah." So Billy Ray shot him.
Kim Johnson also testified at trial. She said she was cooking in the kitchen when Ramrod Bollin was shot. She told the jury that just before the shooting, she heard Ramrod say, "if you're going to kill me, just kill me." Then she heard the flick of a cigarette lighter, and thereafter, a gunshot blast. Kim Johnson left the kitchen and walked toward the bedroom. She arrived at the scene in time to see Ramrod sitting upright on the dresser, clutching his chest. Riley was on the bed holding his shotgun.
At that point, Kim Johnson heard Ramrod Bollin say "Leo" and she exited towards Leotis Gordon's room across the hall. According to Johnson, Leotis Gordon asked her what had happened. Riley and Jackson also came into Gordon's bedroom and Riley told Johnson to go to the front room of the house and get a container of shotgun shells.
Leotis Gordon also testified. He told the jurors that he was sleeping in his room and was awakened by the gunshot blast. Gordon said he heard someone call "Leo, run." Gordon responded by asking, "what's going on in there?" Then Gordon said he proceeded to the bedroom window, apparently to get out of the home. Before Gordon could leave, Riley appeared in the doorway of the bedroom with the shotgun, and told Gordon to "just hold it."
Gordon testified that Riley then told Jackson to get Ramrod Bollin's money and drugs. Thereafter, Riley, Jackson, Johnson, and Gordon proceeded to the living room. While they were in the home, Riley had the shotgun in his possession most of the time, but allowed Jackson to hold the shotgun for approximately five minutes. Gordon said he was afraid for his life when he asked Riley, "why kill `Ramrod' for nothing? He didn't have nothing. . . . [W]hy don't you get `L.L.' He's the guy that has something." Riley apparently thought this question over and then said, "okay, we will get `L.L.'"
Riley and the others went to L.L.'s home, but L.L. did not answer his door so they left. Carolyn Henry was nearby in her father's automobile. Riley and the others got into Henry's car and Riley proceeded to drive the car to some convenience stores and then towards Tonopah, Nevada. Riley apparently held the shotgun for most of this trip, but Darrell Lee Jackson and Kim Johnson also handled it and, at one point, Jackson allegedly "had" the gun on Leotis Gordon.
Eventually, Riley and the others returned to Las Vegas. While Riley left the group to visit an individual named Andy, Carolyn Henry's "god brother" came upon the scene and told those remaining in the car to get out. Riley returned to the group at this time, but did nothing to stop the departure of the others.
Billy Ray Riley and Kim Johnson left together and walked out into the desert where Riley hid the shotgun under some boards. Thereafter, the two were arrested and Johnson led the police to the shotgun.Riley v. State, 107 Nev. 205, 208-10, 808 P.2d 551, 552-54 (1991) (footnote omitted) (copies of the opinion have been submitted by the parties, as Exhibits P264, P287, and R57).
Unless otherwise stated, the exhibits referred to in this order in the form "Exhibit P__" are exhibits filed by Riley and found in the record at docket #74, #75, #76, #77, #78, #79, #80, #81, #82, #83, #84, #85, #86, #87, #88, #89, #90, #107, #108, #109, #110, #111, #112, #113, #114, and #115. The exhibits referred to in the form "Exhibit PR__" are those exhibits filed by Riley with his reply and found in the record at docket #151 (This distinction is necessary because Riley has submitted two sets of exhibits with numbering commencing at 1.). The exhibits referred to in this order in the form "Exhibit R__" are exhibits filed by respondents and found in the record at docket #132, #133, #134, #135, #136, and #137.
The guilt phase of Riley's trial was conducted on January 22, 23, 24, and 25, 1990. See Exhibits R14, R16, R17, and R18. The testifying witnesses included police officers and detectives, the doctor who performed the autopsy on Albert Bollin, Leotis Gordon, Carolyn Henry, Kim Johnson, Darrell Lee Jackson, a friend of Riley's named Cedric Towner, and an investigator who assisted with Riley's defense. Exhibits R16, R17. The jury returned guilty verdicts on January 25, 1990. Exhibits R18, R22.
There is apparently some question regarding the correct spelling of the name of the murder victim. The Nevada Supreme Court spelled his name "Bollin." See Exhibits R57, R102. In his second amended habeas petition, without explanation, Riley spells the name "Bolin." In this order, the court adopts the spelling used by the Nevada Supreme Court.
The penalty phase of Riley's trial was conducted on January 29, 1990. See Exhibit R27. During the penalty phase, the prosecution presented, as testifying witnesses: two police officers, who testified about Riley's criminal record, and Leotis Gordon, who testified about circumstances surrounding the killing of Albert Bollin. Id., at 15-38. In the penalty phase, the defense did not present any witnesses, evidently because Riley instructed them not to. See id. at 8-10. On January 30, 1990, the jury returned a verdict recommending the death penalty. Exhibits R30, R31, R32.
The trial judge sentenced Riley on March 20, 1989. See Exhibit R33. For the first degree murder, Riley was sentenced to death pursuant to the jury's verdict; for the robbery, Riley was sentenced, as an habitual criminal, to life in prison without the possibility of parole. Id. The Judgment of Conviction was filed on April 2, 1990. Exhibit R39.
Riley appealed. See Exhibit R41. On March 28, 1991, the Nevada Supreme Court affirmed. Exhibits R57, R67; see also Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991). The Nevada Supreme Court denied rehearing on May 9, 1991. Exhibit R60. Riley apparently did not petition for certiorari to the United States Supreme Court, and, on July 18, 1991, the Nevada Supreme Court ordered its remittitur issued. Exhibit R62.
On July 22, 1991, Riley filed, in the state district court, a petition for post-conviction relief. Exhibit R65. On September 23, 1991, Riley filed a supplement to the petition, as well as points and authorities in support of it. Exhibits R70, R71. Riley was granted an evidentiary hearing, and that hearing was held on March 23, 1992. See Exhibit R81 (transcript). Riley called three witnesses to testify: Riley's mother, Susie Butler; one of Riley's trial attorneys, Stephen J. Dahl; and a psychiatrist, Jack A. Jurasky, M.D. See id. The State filed an answer on April 7, 1992. Exhibit R83. The court then entertained oral argument on May 12, 1992. Exhibit R84. At a subsequent hearing, on May 19, 1992, the court announced from the bench that the petition would be denied, and the court requested that counsel for the State prepare proposed findings of fact and conclusions of law. Exhibit R85. The State did so, and, on June 29, 1992, the court issued its written order denying Riley's petition for post-conviction relief. Exhibit R86.
The court refers to this as Riley's "first state petition."
Riley appealed. See Exhibit R87. On July 7, 1994, the Nevada Supreme Court affirmed. Exhibit R102; see also Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994). The court denied rehearing on August 12, 1994. Exhibit R105. Riley filed a petition for a writ of certiorari in the United States Supreme Court, and the Supreme Court denied certiorari on April 3, 1995. See Exhibit R107. The Nevada Supreme Court issued its remittitur on April 18, 1995. See id.
On June 7, 1995, this court received from Riley a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and assigned it case number CV-N-95-371-DWH. See docket #1 and #7 in Case Number CV-N-95-371-DWH. Counsel was appointed for Riley, and on February 3, 1998, after certain discovery proceedings, Riley filed an amended petition. See docket #13 and #75 in Case Number CV-N-95-371-DWH. On July 1, 1998, the court granted the State's motion to dismiss, finding that Riley had not exhausted state court remedies with respect to several claims in his petition. See docket #83 and #84 in Case Number CV-N-95-371-DWH.
The court refers to this as Riley's "first federal petition." The court's case numbering system has changed. Under the current system, the case number for Riley's first federal petition would be 3:95-cv-0371-DWH. In this order, the court refers to the case by the case number as it was actually assigned in 1995: CV-N-95-371-DWH.
The court takes judicial notice of the proceedings in Case Number CV-N-95-371-DWH.
On August 26, 1998, Riley filed another petition for writ of habeas corpus in the state district court. Exhibits P1, P2. On January 29, 1999, the state district court dismissed the petition on procedural grounds. Exhibit P4. Riley appealed, and on November 19, 1999, the Nevada Supreme Court dismissed the appeal, concluding that all the claims in Riley's petition were procedurally barred. Exhibit P19. The court denied rehearing on February 25, 2000, and denied en banc reconsideration on June 1, 2000. Exhibit P21, P27.
The court refers to this as Riley's "second state petition."
On February 16, 2001, in federal court, Riley filed, in Case Number CV-N-95-0371-DWH, an amended petition, along with a motion in which he sought to continue his challenge to the validity of his conviction and sentence in the same case that had previously been dismissed and closed. See Motion to Continue Original Case Number and Assign to Original Judge, docket #90 in Case Number CV-N-95-0371-DWH. The court treated that as a motion to reopen Case Number CV-N-95-0371-DWH, and denied the motion on February 20, 2001. See Order Denying Motion to Reopen Case, docket #91 in Case Number CV-N-95-0371-DWH. The court ordered a new case opened. Consequently, this action — Case Number 3:01-cv-0096-RCJ-VPC — was opened and the amended petition submitted on February 16, 2001 (docket #5) was filed in it.
References to the docket in parenthesis indicate the location, in the electronic file for this action, of documents mentioned in this order.
Counsel was appointed for Riley on March 6, 2001 (docket #7, #8). On December 26, 2001, Riley filed a Motion for Leave to Conduct Discovery (docket #14). On September 30, 2002, the court entered an order (docket #26) granting that motion in part and denying it in part. The court granted leave of court for Riley to conduct certain discovery, and the court ordered further briefing regarding certain other discovery sought by Riley. After further briefing, on June 23, 2003, the court entered an order (docket #42) granting Riley leave of court to conduct additional discovery. On January 9, 2004, Riley filed a motion to compel compliance by the Clark County District Attorney's Office (CCDA) with subpoenas (docket #49). That motion was granted on April 23, 2004 (docket #55). On July 26, 2004, Riley filed a motion for an order to show cause why the CCDA should not be held in contempt (docket #59). That motion was granted on March 28, 2005, and the CCDA was ordered to respond to Riley's subpoenas (docket #63). Apparently, the CCDA eventually complied, and Riley's discovery was completed.
On December 27, 2005, Riley filed another state habeas corpus petition, asserting that the felony-murder aggravating factor in his case is invalid under McConnell v. State, 120 Nev. 1043, 102 P.d 606 (2004). See Exhibit PR1. On September 28, 2007, the state district court ruled the felony-murder aggravating factor invalid, but upheld Riley's death sentence on harmless error grounds. See Exhibit PR2, at PA845-48.
On October 10, 2008, Riley filed a petition for a writ of habeas corpus in the Nevada Supreme Court, and that petition was apparently denied. See Reply (docket #150), p. 2; Notice (docket #166).
Meanwhile, in this case, on March 24, 2006, Riley filed a Second Amended Petition for Writ of Habeas Corpus (docket #73), along with supporting exhibits (docket #74-90). The second amended petition sets forth 26 grounds for relief. Ground 1 has several subparts, which are designated Grounds 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1K, 1L, 1M, 1N, 10, 1P, 1Q, 1S(1), and 1S(2).
The court adopts this numbering, as it is the numbering used by Riley in the second amended petition. In the second amended petition, there is no Ground 1H, 1I, IJ, or 1R. In the second amended petition, there are two subparts to Ground 1 designated Ground 1S; the court refers to the first of those as Ground 1S(1), and to the second of those as Ground 1S(2).
On August 24, 2006, the respondents filed a motion to dismiss (docket #98), asserting that some or all of Riley's claims are barred by the statute of limitations, that some are barred by the procedural default doctrine, that some are unexhausted in state court, and that one does not state a viable claim for relief. On March 23, 2007, the court entered an order (docket #116) granting the motion to dismiss in part and denying it in part. The court dismissed Grounds 1D, 1E, 2, 5, 6, 24, and 26. The court found Ground 1G and part of Ground 1Q to be unexhausted in state court; the court ordered Riley to either abandon those unexhausted claims or suffer dismissal of his entire petition under Rose v. Lundy, 455 U.S. 509 (1982). On April 11, 2007, Riley filed a notice (docket #117) abandoning Ground 1G and the unexhausted part of Ground 1Q.
On April 6, 2008, respondents filed an answer (docket #130), responding to the remaining claims in the second amended petition. On November 10, 2008, Riley filed a reply (docket #150), along with a motion for an evidentiary hearing (docket #152). On February 23, 2009, respondents filed a response to Riley's reply (docket #159), and an opposition to the motion for an evidentiary hearing (docket #158). On March 23, 2009, Riley filed a reply in support of his motion for an evidentiary hearing (docket #163).
On June 23, 2009, the court entered an order (docket #164) granting Riley's motion for an evidentiary hearing in part and denying it in part. The court granted Riley an evidentiary hearing on Ground 1P, and denied the motion in all other respects. The evidentiary hearing was held on May 11, 2010.
In the June 23, 2009 order, the court ordered the parties to file supplemental briefing regarding Ground 25. See Order entered June 23, 2009 (docket #164), pp. 48-50. The parties filed that supplemental briefing (docket #175, #178, #180).
Standard of Review of the Merits of Riley's Claims
This federal habeas corpus action was initiated on February 16, 2001. Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
The analysis under 28 U.S.C. § 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
With respect to questions of fact, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Riley argues that AEDPA does not apply. He points to the fact that he initiated his first federal habeas corpus action on June 7, 1995, before the effective date of AEDPA. Riley argues that, in the orders dismissing the 1995 case, opening the 2001 case, and denying a motion to dismiss in the 2001 case, the court recognized a "continuity" of the proceedings in the two cases. See Reply (docket #150), pp. 4-6. Riley argues that the dismissal of the 1995 case was, in effect, a stay rather than a dismissal.
When this court dismissed Riley's first federal habeas action, the court stated the following regarding the applicability of AEDPA:
Because this action was commenced prior to April 1996, it is not controlled by the Anti-Terrorism and Effective Death Penalty Act. However, any subsequent action will be governed by that Act. . . .
Order entered July 1, 1998 (docket #83 in Case Number CV-N-95-371-DWH), p. 1, lines 16-18; see Reply, p. 5, lines 1-12. Any suggestion that Riley was misled by the court, with respect to the application of AEDPA to a subsequent federal habeas action, is, therefore, belied by the record. See also Petitioner's Amended Opposition to Respondent's Motion to Dismiss (docket #80 in Case Number CV-N-95-371-DWH), p. 15; Reply to Petitioner's Amended Opposition to Respondents' Motion to Dismiss (docket #82 in Case Number CV-N-95-371-DWH), pp. 10-11.
Furthermore, Riley cites no legal support for his argument that AEDPA should not apply in this action. The court is aware of no precedent holding AEDPA inapplicable in a case filed after April 24, 1996, on account of a previous federal habeas action filed before that date. On the other hand, there is substantial precedent supporting the court's conclusion that, because Riley's prior federal action was dismissed and the current action was filed after the effective date of AEDPA, this action is subject to AEDPA. See Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.) ("We conclude that the AEDPA applies to a habeas petition filed after AEDPA's effective date, regardless of when the petitioner filed his or her initial petition and regardless of the grounds for dismissal of such earlier petition."), cert. denied, 527 U.S. 1026 (1999); Graham v. Johnson, 168 F.3d 762, 775-90 (5th Cir. 1999); see also In re Vial, 115 F.3d 1192, 1198 n. 13 (4th Cir. 1997) (en banc) (similar holding in case involving 28 U.S.C. § 2255); Roldan v. United States, 96 F.3d 1013, 1014 (7th Cir. 1996) (same). Therefore, the court finds that the AEDPA standards apply to claims that have been adjudicated on their merits in state court.
Several of Riley's claims, however, were not presented in state court on Riley's direct appeal or in his first state petition, but were exhausted by Riley in his second state petition. See Exhibits R50, R52, R70, R71, R94, R98; see also Order entered March 23, 2007, pp. 8-9. The state courts did not resolve Riley's second state petition on its merits; rather, the state courts dismissed that petition as procedurally defaulted. See Exhibits P4, P19. Therefore, such claims were not decided on their merits by the state courts, and this court conducts a review of them, without applying the deferential standards imposed by section 2254(d). See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). With respect to such claims, though, the provisions of section 2254(e), regarding state court findings of fact, still apply. Pirtle, 313 F.3d at 1167-68.
The claims subject to de novo review by this court are Grounds 1A, 1C, 1K, 1L (in part), 1M (in part), 1N, 10, 1P, 1Q, 1S(1), 1S(2), 3, 4, 7 (in part), 8, 9 (in part), 10 (in part), 11, 12, 13, 14, 15, 16, 18, 19, 20 (in part), 21, 22, 23, and 25. The claims subject to review under AEDPA's deferential standards are Grounds 1B, 1F, 1L (in part), 1M (in part), 7 (in part), 9 (in part), 10 (in part), 17, and 20 (in part).
Analysis
Ground 1
In Ground 1, Riley claims that his federal constitutional rights were violated because of ineffective assistance of counsel. Ground 1 has several subparts: Grounds 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1K, 1L, 1M, 1N, 10, 1P, 1Q, 1S(1), and 1S(2). Grounds 1D and 1E were dismissed in the order entered March 23, 2007 (docket #116). Ground 1G and part of Ground 1Q were abandoned by Riley on April 11, 2007 (docket #117). This leaves the following parts of Ground to be resolved: 1A, 1B, 1C, 1F, 1K, 1L, 1M, 1N, 10, 1P, 1Q (in part), 1S(1), and 1S(2).
In Strickland v. Washington, 466 U.S. 668 (1984), the Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.
Regarding the first prong — commonly known as the "effectiveness prong" — the Strickland Court expressly declined to articulate specific guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the duty to communicate with the client over the course of the prosecution. Id. Defense counsel's duties are not to be defined so exhaustively as to give rise to a "checklist for judicial evaluation . . . [because] [a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id.
The Strickland Court instructed that review of an attorney's performance must be "highly deferential," and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the "distorting effects of hindsight." Id. at 689. A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] the [petitioner] must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. (citation omitted).
Construing the Sixth Amendment to guarantee not effective counsel per se, but rather a fair proceeding with a reliable outcome, the Strickland Court concluded that demonstrating that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. In order to satisfy Strickland's second prong, the defendant must show that the attorney's sub-par performance prejudiced the defense. Id. at 691-92. The test is whether there is a reasonable probability that, but for the attorney's challenged conduct, the result of the proceeding in question would have been different. Id. at 691-94. The Court defined reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. at 694.
If the defendant makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Id. at 697.
. . . In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. . . .Id. Ground 1A
In Ground 1A, Riley claims that his trial counsel were ineffective because they "failed to conduct an independent, thorough, and complete investigation of the murder for which he was charged." Second Amended Petition (docket #73), p. 21, lines 9-12. Specifically, Riley claims in Ground 1A that his counsel: failed to fully investigate Henry and Angela Shanks, who evidently found, in a trash receptacle, a bloody shirt that might have belonged to Jackson (id., p. 21, ¶ 5, and pp. 23-24); failed to interview Gordon (id., p. 21, ¶ 6); failed to investigate the alleged failure of the police to properly process the crime scene and the clothing of the suspects (id., pp. 21-22, ¶¶ 7, 8, and 9); failed to investigate and call as a witness Royal "Elroy," or "L.L.," Byron III, whose house Riley, Jackson, Johnson, and Gordon visited after Bollin was killed (id., p. 23, ¶¶ 10-11); failed to investigate and call as a witness Charles Glover, who lived in the neighborhood, knew many of the people involved in the case, and had been in Gordon's house shortly before Bollin was shot (id., pp. 24-25, ¶ 15); failed to investigate and call as a witness Lou Anderson, who was a frequent visitor to Gordon's house and was there during the night and early morning before Bollin was shot (id., p. 25, ¶ 16); failed to investigate and call as a witness Regina Green, who lived in the neighborhood, knew many of the people involved in the case, had been in Gordon's house the evening before Bollin was shot, and had been in Gordon's house before the police on the day Bollin's body was discovered (id., pp. 25-26, ¶¶ 17-20); failed to investigate and call as a witness Sylvia Green, who lived in the neighborhood, knew many of the people involved in the case, had been in Gordon's house the evening before Bollin was shot, and had been in Gordon's house before the police on the day Bollin's body was discovered (id., pp. 26-27, ¶¶ 21-26, and p. 25, ¶ 16); failed to investigate Cedric Towner, who lived in the neighborhood, had lived for a time in Gordon's house, knew many of the people involved in the case, had been in Gordon's house the night before Bollin was shot, and had been in Gordon's house before the police on the day Bollin's body was discovered (id., pp. 27-29, ¶¶ 27-32); and failed to investigate and call as a witness Nathaniel Richard, who lived in the neighborhood, knew some of the people involved in the case, had been in Gordon's house before the police on the day Bollin's body was discovered, and had called the police (id., p. 29, ¶ 10). Riley claims that, had these matters and these individuals been properly investigated, the investigation would have uncovered information useful to the defense with regard to the following: the credibility of Jackson, Gordon, Johnson, and Henry; the alleged compromised nature of the crime scene and physical evidence; Jackson's alleged involvement in Bollin's murder; the alleged motives of Jackson and others to harm Bollin; and the pervasive use of drugs and criminal activity in the neighborhood and in Gordon's house. See id. at pp. 29-31, ¶¶ 34-41.
Given the strength of the evidence against Riley, and in light of the declarations of the witnesses identified by Riley in Ground 1A, the court finds that there is no reasonable probability that further investigation of those witnesses, and presentation of their testimony at trial, would have resulted in a different result at the guilt phase of Riley's trial. There was overwhelming evidence at trial showing that Riley shot Bollin. Jackson's testimony that he saw Riley shoot and kill Bollin (see Exhibit R17, pp. 352-57) was convincing, was well corroborated by the testimony of Johnson and Gordon, and is not significantly undermined by any of the declarations of witnesses proffered by Riley in support of Ground 1A.
Several witnesses testified that, during the weeks before the murder of Bollin, Riley frequently had possession of the sawed-off shotgun with which Bollin was shot, and that Riley referred to the shotgun as "Babe," or "Baby," or "the Beastie Stick." See Exhibit R16, pp. 222-24 (Gordon), pp. 258, 260 (Henry), pp. 272-74, 298-99, 311 (Johnson); Exhibit R17, pp. 350-51 (Jackson), pp. 388-91 (Towner). There was testimony that Riley had possession of the shotgun just before, and just after, the shooting of Bollin. See Exhibit R16, pp. 228-29, 252-53 (Gordon), pp. 276-92, 315 (Johnson); Exhibit R17, pp. 350-57 (Jackson).
Jackson testified that he was an eyewitness to Bollin's murder. Exhibit R17, pp. 355-56. He testified that he was in the room, just a few feet from Bollin, when he saw Riley shoot Bollin. Id. (Jackson testified that Bollin was sitting on the end of a dresser, and he, Jackson, was positioned near the middle of the dresser).
Kim Johnson testified that, at the time of the murder, she was Riley's girlfriend, and loved him. See Exhibit R16, pp. 272, 310-12. Johnson testified about what she observed when Bollin was shot:
Q. What did you hear?
A. I could hear "Ramrod" talking.
Q. What was "Ramrod" saying? I know this is hard for you, but you got to tell us. Look at the jury and tell them.
THE COURT: What did you hear at that time?
THE WITNESS: He said that if you are going to kill me, just kill me.
Q. (By Mr. Henry) Did you recognize "Ramrod's" voice?
A. Yes.
Q. After he said "if you are going to kill me, just kill me," what did you hear?
A. I could hear a lighter flicking. Then I heard the shot.
Q. Were you in the kitchen when you heard all this?
A. Yes.
Q. After you heard this did you leave the kitchen and go elsewhere?
A. Yes.
Q. At what point did you leave the kitchen? Was it after you heard "if you are going to kill me, kill me," after the lighter flicking or after the gunshot?
A. After the gunshot.
Q. When you left the kitchen after you heard the gunshot, where did you go?
A. To "Ramrod's" room.
* * *
Q. When you got to the door of "Ramrod's" room did you look in?
A. Yes.
Q. Was there anybody in "Ramrod's" room?
A. Yes.
Q. Who was in "Ramrod's" room?
A. "Ramrod," Billy Ray and Darrell Lee.
Q. Where was "Ramrod"?
A. Sitting on the dresser.
Q. Did you notice anything unusual about him?
A. Yes.
Q. What's that?
A. He was holding himself.
Q. Where was he holding himself?
A. To the chest.
Q. Was there anything unusual about his chest?
A. I could see blood on his shirt.
Q. Where was Billy Ray Riley, the defendant in this action?
A. Sitting on the bed.
Q. Did he have anything in his hand?
A. Yes.
Q. What?
A. The shotgun.
Q. Baby?
A. Yes.
Q. How long was it from the time you heard the gunshot until you saw Billy Ray Riley with Baby in his hand?
A. As soon as I heard the shot I just walked back there.
Exhibit R16, pp. 284-86; see also id. at 315-20, 328-30. Johnson testified that later that day, she went with Riley into the desert, where Riley wiped off the shotgun and hid it. Id. at 302-07.
Leotis Gordon, who had known Riley for 30 or 35 years and considered him a friend (see Exhibit R17, pp. 222, 250), and who was sleeping in another bedroom when Bollin was shot, testified that he was awakened by the shotgun blast and heard Bollin call out "Leo run," then he moved toward a window, but Riley appeared in the doorway of his bedroom, pointed the shotgun at him, and stopped him from leaving through the window. See Exhibit R17, pp. 227-30, 252. According to Gordon, this all transpired very quickly; he described Riley as appearing in his doorway with the shotgun within "a second" after he heard the shotgun blast. Id. at 229-30, 252.
Furthermore, Gordon testified as follows about an exchange he had with Riley just after Bollin was killed:
Q. What did you say?
A. I said "why kill `Ramrod' for nothing? He didn't have nothing. Why don't you get the guy that has something."
Q. What did Billy Ray say then?
A. I said, "why don't you get `L.L.'. He's the guy that has something." And he thought about it for a while and I guess mulled it over. And he said, "okay, we will get `L.L.'"
Exhibit R17, pp. 234-35.
The suggested investigation, which Riley believes his counsel should have undertaken, focuses on the defense allegation that Jackson, not Riley, shot Bollin. Much of the suggested investigation — the investigation of Byron, Glover, Anderson, Regina Green, Sylvia Green, Towner, and Richard — would have sought general background information regarding Jackson, Gordon, Johnson, and Henry, as well as general information regarding Gordon's house and the neighborhood. See Second Amended Petition, pp. 29-31. In addition, according to Riley, investigation of the alleged poor processing of the crime scene and suspects' clothing would have shown that the police investigation was not done properly. See id. According to Riley, the suggested investigation of Henry and Angela Shanks might have led to evidence showing that Jackson's clothing was bloody after the shooting. See id.
This court has considered the declarations proffered by Riley in support of this claim, including the declarations of Thomas Casler (Exhibit P206), G.A. Weaver (Exhibit 208), Richard (Exhibit P210), Glover (Exhibit P211), Towner (Exhibit P212), Anderson (Exhibit P213), Regina Green (Exhibit P214), and Sylvia Green (Exhibit P215). Most of the evidence that might have been developed by means of the suggested investigation of these individuals would have been character evidence regarding Jackson, Gordon, Johnson, and Henry, and general information about drug use and criminality in Gordon's house and the neighborhood. In light of the strong evidence of Riley's guilt, there is no reasonable probability that such character evidence regarding Jackson, Gordon, Johnson, and Henry would have changed the jury's conclusion that Riley shot Bollin.
It was plain from the evidence presented at trial that cocaine use was rampant at the house where Bollin was killed. See Exhibit R16, pp. 224-25, 249-50 (Gordon), pp. 283, 291-93, 316, 321-22 (Johnson); Exhibit R17, pp. 351-56, 367-68, 374 (Jackson). The jury heard testimony that Riley, Bollin, and Jackson smoked crack cocaine shortly before the shooting, and that Riley, Jackson, Johnson, and Gordon smoked crack cocaine shortly after the shooting. See Exhibit R16, pp. 292-93, 315-16, 321-22 (Johnson); Exhibit R17, p. 354-56, 367-68 (Jackson). It was clear at trial that the events in this trial took place at a "crack house," and that everyone in the house when Bollin was shot was a drug user. This court finds that there is no reasonable probability that more information about drug use in the house or the neighborhood, or more testimony about the character of Jackson and the other witnesses, would have affected the jury's view such that it might have changed the outcome of the trial.
Furthermore, in light of the testimony of Jackson, Johnson, and Gordon, the court finds that there is no reasonable probability that evidence of the alleged poor processing of the crime scene and the suspects' clothing would have undermined the jury's conclusion that Riley shot Bollin.
Moreover, the court finds that there is no reasonable probability that evidence that Jackson's clothing was bloody would have led the jury to a different conclusion. The jury heard testimony that Jackson was near Bollin when Bollin was shot, and that Jackson handled Bollin's body and went through his pockets after the shooting. See Exhibit R16, pp. 230-33, 248 (Gordon), pp. 286, 289-90, 320-21 (Johnson); Exhibit R17, pp. 355-58, 362-73 (Jackson). Riley does not suggest any reason why the clothing of the shooter would necessarily have become more bloody than the clothing of a witness who was close to the victim when he was shot, and who handled the victim's body after the shooting. Evidence that Jackson's clothing was bloody would have been consistent with the testimony of Gordon and Johnson, as well as Jackson's own testimony, and there would have been no reasonable probability of such evidence raising any doubt about Riley's guilt.
In essence, the court finds that, even if the suggested investigation had been done and even if it had yielded the kind of evidence Riley has proffered, there is no reasonable probability of a different outcome at his trial. The identity of the shooter was not a close question; the overwhelming evidence indicated that Riley shot Bollin.
The court will, therefore, deny habeas corpus relief on Ground 1A.
Ground 1B
In Ground 1B, Riley claims that his trial counsel were ineffective for their "failure to investigate and to consult or retain the services of a ballistics and/or crime scene expert." Second Amended Petition, p. 31, lines 24-25. Riley asserts in this claim that there was evidence inconsistent with Jackson's testimony regarding the manner in which the shooting of Bollin occurred. Riley claims that his counsel was ineffective for failing to adequately investigate these inconsistencies and for failing to retain an expert to testify regarding them.
The first of the alleged inconsistencies between the evidence and Jackson's testimony involves the angle of the shotgun blast, from left to right, relative to Bollin's body. Jackson was present in the room, and close to Bollin, when Bollin was shot, and he testified that he saw Riley shoot Bollin. Jackson testified that, when Riley shot Bollin, Riley was sitting on the bed three or four inches from the wall, and Bollin was sitting across from him on a dresser, near the end of the dresser closest to a wall. Exhibit R17, pp. 364-65. There was testimony at trial indicating that the dresser was about two feet from the wall. Exhibit R16, p. 187. According to Riley, based on Jackson's testimony, the shot would have been at an angle from Bollin's right to left. However, according to the testimony of Dr. Giles Sheldon Green, the Clark County Chief Medical Examiner, who performed the autopsy, the shot traveled at a slight angle from Bollin's left to right. Exhibit R16, pp. 216-18.
The second of the alleged inconsistencies between the evidence and Jackson's testimony involves the angle of the shot, up and down. There was evidence that the bed on which Riley sat was approximately nine inches lower than the dresser on which Bollin sat. Exhibit R17, pp. 392-93. Jackson testified that Riley held the shotgun at his waist as he sat on the bed and shot Bollin. Exhibit R17, p. 365. Therefore, according to Riley, if Jackson's testimony is believed, the shot had to travel at an upward angle. However, according to Dr. Green's testimony, the shot entered Bollin's body approximately horizontally, assuming Bollin was sitting straight up. Exhibit R16, p. 217.
The third inconsistency claimed by Riley involves the distance from which Bollin was shot. Again, Jackson testified that, when Riley shot Bollin, Riley was sitting on the bed and Bollin was sitting on the dresser. Exhibit R17, pp. 364-65. Jackson testified that Riley held the sawed-off shotgun at his waist and was leaning back slightly. Id. at 365. There was testimony that the bed was two or three feet from the dresser. Exhibit R16, p. 188. Jackson testified that, when Bollin was shot, the distance from the shotgun to Bollin's body was about two and a half feet. Exhibit R17, p. 373. However, Riley points out that Dr. Green testified, on cross examination, that the gun was only a few inches from Bollin's body when he was shot. Exhibit R16, p. 215; but see id. at p. 205 (On direct examination, Dr. Green testified that "we are looking at a fairly short range shot, probably in the ballpark figure of a few feet.").
Riley submits a December 1997 declaration of Gaylan Warren, a forensic microscopist and firearms expert, who reviewed various materials related to this case and conducted ballistic tests. Exhibit P201. In his declaration, Warren opines that Jackson's testimony was inconsistent with the physical evidence. Id.
Riley raised this claim in state court in his first state petition. Exhibit R71, pp. 5-6. However, at the evidentiary hearing on that petition, Riley did not offer the testimony of Gaylan Warren, or any other ballistics or crime scene expert. See Exhibit R81. Following the evidentiary hearing, the state district court ruled as follows:
The defendant's first contention is that his counsel did not adequately investigate the case in preparation for trial. This Court finds that the defendant's counsel did adequately investigate the case in preparation for trial. Specifically, this Court finds that the petitioner's allegation that his counsel should have employed a ballistic expert is speculation because no ballistic expert testified at the evidentiary hearing on post-conviction relief as to the possibility of subjecting a shotgun blast to ballistic analysis, or the results and relevance of that analysis to this case.
Exhibit R86, p. 2, lines 8-17.
Riley appealed, and asserted this claim on appeal. Exhibit R94, pp. 9-13; R98, pp. 3-7. The Nevada Supreme Court ruled as follows:
Riley also argues that Dahl [his trial counsel] provided ineffective representation at trial by failing to hire, consult or call a ballistics expert to substantiate Riley's theory that Jackson, not Riley, shot Bollin. To support this theory Dahl showed the jury a diagram showing the measurements of the room and the positions of the bed, dresser and victim. Dahl had used the measurements recorded by police investigators, and he had hired a defense investigator to take measurements at Gordon's house.
The chart was used as demonstrative evidence only, and was not admitted into evidence. Using the chart during closing, counsel argued that based upon his measurements, and those of police investigators, it was highly unlikely that the shot that killed Bollin was fired from the spot on the bed where Riley sat. Therefore, Dahl argued, it must have been Jackson who shot Bollin.
Riley argues that an expert would have appeared more credible to the jury and would have substantiated the claim that the gun could not have been fired from where Riley sat. Therefore, he argues, Dahl's error in failing to consult, hire and call an expert was so deficient that the conviction must be reversed.
Prejudice in an ineffective assistance of counsel claim is shown when the reliability of the jury's verdict is in doubt. Strickland, 466 U.S. at 687. Reliability is in doubt where the defendant can show that, but for counsel's errors, there is a reasonable probability that the result of the trial would have been different. See [State v. Love, 109 Nev. 1136, 1139, 865 P.2d 322, 323 (1993)]; Strickland, 466 U.S. at 694.
In the instant case, Riley's theory that Jackson shot Bollin does not appear credible, and, given the evidence elicited at trial, the reliability of the jury's verdict does not appear to be in doubt. The testimony at trial established that Johnson arrived at the door of the bedroom within seconds of hearing a gunshot and saw Riley on the bed holding the gun and Bollin clutching his chest. The gun belonged to Riley, and he had been holding it for the several minutes prior to the shooting. In addition, Jackson's story regarding Riley's motives and actions (that he was agitated, crying and wanted to rob drug dealers, who he thought had ripped him off) is partially corroborated by statements made by Johnson regarding what she heard and saw.
Thus, even if counsel's conduct fell below the level of care expected of a competent defense attorney, Riley has nevertheless failed to show that the jury's verdict is unreliable and that he was prejudiced. We do not reach whether the failure to call an expert was deficient, however, as Riley's argument that expert witness testimony was "crucial" is highly speculative. Riley failed to meet his burden — to present an argument demonstrating the type and strength of evidence that might have been presented, and that there exists a reasonable probability that presentation of the evidence would have resulted in a different outcome at trial. We must hold that Riley's claim that Dahl was ineffective for failing to hire or consult an expert on ballistics is without merit, as he has failed to articulate prejudice in a persuasive manner.
Exhibit R102, pp. 10-12.
At the evidentiary hearing in state court, Riley made no attempt to present the opinion of Gaylan Warren, or any other ballistics or crime-scene expert. This failure was a primary ground for the state courts' denial of the claim. Riley has not made any showing that he was prevented in any manner from developing expert evidence in support of this claim in state court. And, neither of the two exceptions in section 2254(e)(2) applies: the claim does not rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" ( 28 U.S.C. § 2254(e)(2)(A)(i)), and the claim does not rely on "a factual predicate that could not have been previously discovered through the exercise of due diligence" ( 28 U.S.C. § 2254(e)(2)(A)(ii)).
Warren's opinions, as expressed in his declaration, are based in part on testing conducted on a shotgun with a barrel sawed off to the same length as a shotgun barrel found after trial. See Second Amended Petition, p. 33, ¶ 47. The shotgun barrel was found by Riley's state post-conviction counsel and investigators. Id. There is no explanation why that investigation could not have been done before the state-court evidentiary hearing, and made part of a study by an expert such as Warren to be presented at the evidentiary hearing. In fact, in the second amended petition in this case, referring to the shotgun barrel and the testing done by Warren, Riley asserts: "All this evidence was available to trial counsel who could have completed the same investigation as was conducted during post-conviction proceedings." Id. at p. 33, ¶ 49. Certainly then, all this evidence was likewise available to Riley's state post-conviction counsel before the state-court evidentiary hearing, and there is no showing of any reason why it could not have been presented at that evidentiary hearing.
Because Riley failed to develop this evidence in state court, and because the exceptions in 28 U.S.C. § 2254(e)(2) do not apply, the court concludes that, under section 2254(e)(2), the Warren declaration (Exhibit P201) is inadmissible to support Ground 1B.
Turning to the merits of Ground 1B, the court determines that the Nevada Supreme Court's ruling — that "even if counsel's conduct fell below the level of care expected of a competent defense attorney, Riley has nevertheless failed to show that the jury's verdict is unreliable and that he was prejudiced" (Exhibit R102, pp. 11-12) — was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d). Riley points to arguable inconsistencies between Jackson's testimony and certain evidence admitted at trial concerning the positions of Riley and Bollin, and the position of the shotgun, when Bollin was shot. Riley's argument depends, in large part, upon the position of Bollin's body when he was struck by the shotgun blast. Riley appears to assume that, when he was shot, Bollin was sitting straight up and facing straight forward. However, the exact position of Bollin's body when he was shot cannot be conclusively determined. See Exhibit R17, p. 375 (Jackson testified that Bollin was "leaning forward."). The unavoidable uncertainty regarding the position of Bollin's body when he was shot undermines Riley's arguments that inconsistencies regarding the angle of the shot and the distance between the shotgun and Bollin cast doubt upon his conviction. This court concludes that there is no reasonable probability that further development of evidence regarding those alleged inconsistencies, through an expert witness, would have led to a different outcome at trial. While there is uncertainty about the precise positions of Riley and Bollin, and the gun, when Bollin was shot, the salient point of Jackson's testimony — that he saw Riley shoot Bollin (see Exhibit R17, pp. 352-57) — was convincing, was well corroborated by the testimony of Johnson and Gordon, and is not undermined by the sort of expert testimony suggested by Riley. The court finds the testimony of Jackson, Johnson, and Gordon to be compelling. See discussion of Ground 1A, supra. The testimony of those witnesses, while not perfectly consistent, dovetails in a manner that strongly suggests it was truthful, and not contrived or coached. In light of the strength of the evidence that Riley shot Bollin, the court determines that testimony by a ballistics or crime scene expert would not have made any difference to the outcome of the trial. This court concurs with the state court's determination that there was no prejudice to Riley from the failure to present such testimony. See Strickland, 466 U.S. at 697. The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The court will deny habeas corpus relief with respect to Ground 1B.
As is discussed above, the court rules the Gaylan Warren declaration to be inadmissible under 28 U.S.C. § 2254(e)(2). However, even if that declaration is taken into consideration, the court's conclusion is unchanged. There is no reasonable probability that development and presentation of expert opinion such as Warren's would have changed the outcome of the trial.
Ground 1C
In Ground 1C, Riley claims that his trial counsel were ineffective for failing "to consult or retain the services of a psychiatrist or other expert on cocaine and its effects." Second Amended Petition, p. 35, lines 18-19. Riley claims that expert psychiatric testimony would have "put at issue the requisite intent to commit murder," and "the ability of the prosecution witnesses to accurately perceive events, and accurately or reliably recall them." See id. at p. 38, lines 2-3. Riley claims, therefore, that such an expert would have altered the outcome of the guilt phase of his trial. See id., p. 38. In addition, Riley claims that such expert testimony "would have mitigated the offense in that the jury would have understood the circumstances in which the shooting occurred," and therefore it would have led to a different outcome in the penalty phase of the trial. Riley presents, in support of this claim, the declaration of Manuel Saint Martin, M.D., a psychiatrist. See Exhibit P205.
The court finds that the testimony of Dr. Saint Martin, as reflected in his declaration, would have had no reasonable possibility of changing the outcome at either the guilt phase or penalty phase of Riley's trial.
With respect to the guilt phase, as is discussed above with respect to Ground 1A, it was plain from the evidence presented at trial that everyone in the house where Bollin was shot used cocaine. See Exhibit R16, pp. 224-25, 249-50 (Gordon), pp. 283, 291-93, 316, 321-22 (Johnson); Exhibit R17, pp. 351-56, 367-68, 374 (Jackson). The jury heard testimony that Riley, Bollin, and Jackson smoked crack cocaine shortly before the shooting, and that Riley, Jackson, Johnson, and Gordon smoked crack cocaine shortly after the shooting. See Exhibit R16, pp. 292-93, 315-16, 321-22 (Johnson); Exhibit R17, p. 354-56, 367-68 (Jackson). The jury, therefore, was aware that the witnesses were under the influence of cocaine at the time of the events at issue. Based upon their general life experience, and their common sense, the jurors must have known that the witnesses' cocaine use had some effect. While expert testimony may have made more specific the jury's understanding of the effect of the cocaine, this court finds, in light of the evidence at trial, that any effect on the jury's view of the evidence, with respect to Riley's guilt, would have been minimal. The evidence of Riley's guilt was overwhelming. This court finds that there is no reasonable probability that expert testimony about the effects of cocaine, with respect to the witnesses against Riley, would have had any possibility of changing the outcome of the guilt phase of the trial.
With respect to the question of Riley's mental state at the time of the killing, there was strong evidence showing that, despite his drug use, Riley was quite able to act in a willful, deliberate and premeditated manner. See, e.g., Exhibit R16, pp. 228-43 (Gordon), pp. 256-63 (Henry), pp. 280-308 (Johnson); Exhibit R17, pp. 350-60 (Jackson). Moreover, there was testimony indicating, in an unusually direct fashion, that Riley did have the requisite mental state for first degree murder. Jackson testified that, before Riley shot Bollin, Riley twice asked Bollin if he was ready to die. Exhibit R17, p. 356. Johnson testified that, before the shotgun blast, she heard Bollin say: "If you are going to kill me, just kill me." Exhibit R16, p. 284, lines 7-8. The court concludes, then, in light of the evidence at trial, that there is no reasonable probability that testimony of an expert, such as Dr. Saint Martin (Exhibit P205), would have affected the jury's finding that Riley had the requisite mental state for first degree murder.
With respect to the penalty phase of the trial, as well, the court finds there to be no reasonable probability that expert testimony regarding the effects of cocaine would have led to a different outcome. The jury knew that Riley was a heavy cocaine user, and that he had smoked crack cocaine just before and just after the shooting. See Exhibit R16, pp. 292-93, 315-16, 321-22 (Johnson); Exhibit R17, p. 354-56, 367-68 (Jackson). Expert testimony on the effect of cocaine would have had no reasonable probability of changing the outcome of the penalty hearing.
This part of Ground 1C is somewhat similar to the part of Ground 1F involving the failure of Riley's trial counsel to hire an expert to testify at the penalty phase of the trial regarding the effects of Riley's cocaine use. It appears to the court that the difference is that in Ground 1C the emphasis is on the effect of Riley's use of cocaine at the time of the shooting, whereas in Ground 1F the emphasis is on the effect of Riley's long-term use of cocaine.
The court will therefore deny habeas corpus relief with respect to Ground 1C.
Ground 1F
In Ground 1F, Riley claims that his trial counsel were ineffective because of their "failure to develop a comprehensive social history and to locate, conduct or present to the jury a thorough, independent and complete investigation into witnesses to support any mitigation theory." Second Amended Petition, p. 40, lines 19-20. Riley points out that, at the penalty phase of his trial, his counsel presented no mitigation evidence other than a probation report. Id., p. 40, lines 23-24; see also Exhibit P284, p. 38; see also Exhibit P259. Riley describes a myriad of events from his background, and the background of his family, that he believes should have been presented to the jury through testimony of witnesses at the penalty phase of his trial. See Second Amended Petition, pp. 40-55. In addition, Riley claims that counsel should have offered mitigation evidence regarding his prior felony convictions, and regarding his addiction to cocaine.
In support of Ground 1F, Riley presents declarations of family members regarding his background and the background of his family. See Exhibits P216 (Susie Butler), P217 (Annette Chalmers), P218 (Linda Pearson), P219 (John Riley), P314 (Linda Pearson), P324 (Susie Butler). He submits the declaration of a neuropsychologist, Dr. David L. Schmidt, Ph.D. See Exhibit P273. He also submits the declaration of an investigator, Thomas W. Casler, and a mitigation specialist, Glori J. Shettles. See Exhibits P204 (Shettles), P275 (Casler).
Riley made this claim in his first state petition. See Exhibit R70, p. 2; Exhibit R71, pp. 6-8; R94; R98. The state district court denied relief after an evidentiary hearing, and the Nevada Supreme Court affirmed. See Exhibits R81, R86, R102.
The detailed and extensive family-background evidence presented to this court was not presented in state court. At the evidentiary hearing in state court, on March 23, 1992, Riley called his mother, Susie Butler, to the stand, and she testified as follows:
Q. Can you tell me what information you related to Mr. Dahl [one of Riley's trial attorneys] about your son's background?
A. He asked me what type of child he was as he was growing up, and I told him he was just about like all other kids, got into trouble sometimes, sometimes he didn't. When he was thirteen he went to juvenile home. After then then he come home and he go to school. And one time he shot himself and after he shot himself that is when we had to pray because the doctor said that the bullet would have to be — the lead in his leg would have to be cut on, and I was afraid. So I asked him, the doctor, for two weeks. And in the two weeks time myself and Billy Ray prayed and others in our church prayed, and the bullet, the lead come up out of his leg. And he called me and told me that the lead was out about two days before the doctor had stated that they was going to operate on his leg.
* * *
Q. Can you tell me whether you had any conversations with Mr. Dahl concerning your testifying at your son's penalty hearing on his murder case?
A. Yes. I asked him "could I testify?" And he said that Billy Ray had said he didn't want me to testify. That's what he told me.
Q. Did you relate to Mr. Dahl any of the background?
A. I told him I had some things that I would like for him to know, but I never did get around to telling him because he didn't call me back.
Exhibit R81, pp. 5-7 (as in original). Counsel then went on to ask Butler what kind of things she wanted to tell Riley's trial counsel, and Butler testified that she heard Jackson admit to killing Bollin. Id. at 7-9. After that, Butler's direct examination ended as follows:
Q. Now, other than that particular incident, did you attempt to relate to Mr. Dahl any other information concerning your son's background?
A. No. I never did get back with him.Id. at 9. When Riley's mother was on the stand at the state court evidentiary hearing, Riley's counsel did not extract from her the sort of detailed and extensive background information that Riley now seeks to present to this court. See, e.g., Exhibit P216 (declaration of Susie Butler). Nor did Riley's counsel call any other witness to testify at the evidentiary hearing about Riley's background.
Under 28 U.S.C. § 2254(e)(2), Riley failed to develop the factual basis for this claim in state court. See 28 U.S.C. § 2254(e)(2); Holland, 542 U.S at 652-53; Williams, 529 U.S. at 431-37; Insyxiengmay, 403 F.3d at 669-70. Ground 1F does not rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," nor does Ground 1F rely on "a factual predicate that could not have been previously discovered through the exercise of due diligence." See 28 U.S.C. § 2254(e)(2)(A). The court concludes, therefore, that the declarations of Riley's family members (Exhibits P216 (Susie Butler), P217 (Annette Chalmers), P218 (Linda Pearson), P219 (John Riley), P314 (Linda Pearson), P324 (Susie Butler)) as well as the declarations of Dr. David L. Schmidt, Ph.D (Exhibit P204) and Thomas W. Casler (Exhibit P275), are inadmissible to support Ground 1F.
Turning to the merits of Ground 1F, Riley's claim that his counsel should have introduced more mitigation evidence can fairly be described as ironic. Riley himself blocked his attorneys' attempts to pursue such an investigation, and Riley prevented them from calling family members as mitigation witnesses at the penalty phase of his trial.
At the evidentiary hearing in state court, Stephen Dahl, one of Riley's trial attorneys, testified as follows when questioned about his contacts with Riley's mother, Susie Butler:
Q. How about prior to the penalty hearing, any contact with Ms. Butler concerning mitigation or anything of that nature?
A. Yeah, we talked to her and other family members. At first she was cooperative, but then before the penalty phase she told us she was not willing to testify and didn't want to testify.
Q. Did you follow up on her reasoning for that?
A. Yeah. Mr. Riley had told her and other members of his family that they shouldn't cooperate with us in the penalty phase.
Q. And did you contact your client to find out whether, in fact, those statements were true?
A. Yes.
Q. And what was the result of that conversation, that contact?
A. He told us that he had contacted them and told them not to assist us; that I believe he said he didn't want to get them involved at that point. And I don't recall what else might have been said at that time.
Q. Did you make any effort to try and dissuade him or talk him out of that action that he was making?
A. Yeah, we spoke about it in the jail saying that we needed that cooperation if we were going to put on any kind of a penalty phase. And he didn't change his mind.
Exhibit R81, pp. 19-20. On cross-examination, Dahl testified further about this matter:
Q. Tell me if this is a correct understanding of your testimony today, that you attempted to interview your client, Mr. Riley, as to his past history, his family background, but that he either wouldn't give you information or gave you very sketchy information?
A. It wasn't as complete as we would have liked it to be. I don't have a clear recollection right now exactly what he told us and didn't tell us, but I do recall it was not as complete as we were hoping to get.
And we would have had trouble conducting a full investigation based on what he was telling us.
Q. Did you tell him that by not cooperating with you he was diminishing the chances of having a successful defense?
A. Yes.
Q. Did you tell him that on more than one occasion?
A. Yes.
Q. Would it be fair to say that he failed to cooperate with you during the whole course of your representation?
A. No, he didn't fail — as to the guilt phase he didn't fail to cooperate with us at all. He was helpful about the guilt phase and gave us information that he could. He directed us to some witnesses and was quite cooperative in the guilt phase.
The penalty phase he was not as forthcoming with information.
Q. Did you advise him that by not cooperating or not being forthcoming as to the penalty phase information, he was increasing the likelihood that he would get the death penalty?
A. Yes.
Q. Did you tell him that on more than one occasion?
A. Yes.
Q. Did you plead with him to assist you?
A. We asked him to in the strongest terms. I don't know if we pleaded with him, but we did ask him and tried to get him to cooperate with the penalty phase.
Q. So you not only did that but Mr. Martin did it in your presence?
A. Yes, we would both go almost every time we would go visit him.
Exhibit R81, pp. 31-33; see also id. at p. 7 (Riley's mother testified that Riley's counsel told her that Riley did not want her to testify.); Exhibit P238 (memo to file written by Riley's trial counsel, stating that Riley had failed to comply with requests for background information).
At the penalty phase of Riley's trial, Riley's counsel made a record regarding Riley's wishes:
MR. DAHL: One other matter, your Honor. In the preparation of this case we had identified or the defense attorneys had identified several witnesses who we thought we would like to testify at the penalty phase. Apparently Mr. Riley has instructed them not to testify. I think some of them may be present and some of them may not be present. But he has asked that they not testify, and they are apparently going to honor his wishes. I wanted to put that on the record.
THE COURT: Mr. Riley, for the record, please stand. Did your attorney subpoena or have certain witnesses to be available to testify at this penalty phase?
THE DEFENDANT: Yes, they did.
THE COURT: And it is your desire not to call any witnesses during this penalty phase?
THE DEFENDANT: Yes, your Honor.
THE COURT: Have you fully discussed this with your attorney?
THE DEFENDANT: Yes, I have.
THE COURT: Do you understand what you are doing?
THE DEFENDANT: Yes.
Exhibit R27, pp. 8-9.
The state district court denied habeas corpus relief on this claim, ruling as follows:
Petitioner asserts that his trial counsel failed to offer mitigating evidence at the penalty phase. This Court finds that the defendant refused to assist his trial counsel in preparing or presenting mitigating evidence at the penalty phase. Further, the defendant instructed potential defense penalty phase witnesses who were his family members not to cooperate with his counsel and not to appear and testify at the penalty phase.
Exhibit R86, p. 2. The Nevada Supreme Court affirmed, adopting the reasoning of the state district court. See Exhibit R102, p. 15, footnote 8.
The state courts' resolution of this issue was not an unreasonable application of Strickland. Riley refused to cooperate or assist with a mitigation investigation, and he insisted that counsel not call family members as mitigation witnesses. Under these circumstances, Riley's counsel cannot be faulted for not doing a more extensive background investigation or for not calling Riley's family members as mitigation witnesses. See Schriro, 550 U.S. at 475-77.
Also with respect to the part of Ground 1F in which Riley claims that his counsel were remiss for not presenting, in the penalty phase of the trial, evidence, perhaps including expert testimony, regarding Riley's mental health history, and including his history of illegal drug usage, the Nevada Supreme Court denied relief. The court ruled that a pre-trial psychiatric evaluation of Riley done for his counsel by Dr. Jack Jurasky (Exhibit P240), focusing on Riley's competence to stand trial, did not indicate "the existence of particular psychological conditions or disorders that may have shown prior mental disturbance or impaired mental state." Exhibit R102, p. 14. The court went on:
The records in the instant case show the existence of industrial head injuries, for which Riley received insurance benefits, and that Riley was admitted to a hospital for psychiatric evaluation at the age of 16.
Although the evaluation indicated a history of extensive drug use, there was no indication in the pre-trial evaluation, conducted to determine psychological fitness to stand trial, that Riley's mental health or physical functioning was affected by such drug use. As a result, we hold that it was not ineffective assistance of counsel, without stronger indications, for Dahl to have failed to order a psychiatric evaluation of Riley based on information contained in the pretrial evaluation.Id. at pp. 14-15.
Dr. Jurasky's pre-trial report concluded as follows:
It is interesting how some people can abuse street drugs for very long periods of time, years even, and still retain cognitive and rational capabilities. Others might degenerate to little more than vegetables in a relatively short time. This defendant appears to be of the former type. He is in fairly good condition and might even be capable of handling school assignments. There is no evidence of psychosis and brain dysfunction is minimal . . . I do not know how he was before, of course. The amount and type of cocaine he was taking on the day of the alleged homicide would very likely cause an amnesic period. However, at the present time, I find the defendant to be competent to advise with counsel, assist in his defense, recall evidence and to give
testimony if called upon to do so. Similarly, I find him in possession of mental faculties sufficient to enter into plea negotiations intelligently and knowledgeably.
Exhibit P240, p. 2. Because Dr. Jurasky's report was unremarkable, the court finds that the Nevada Supreme Court's ruling, in this regard, was not an unreasonable application of Strickland.
Moreover, with respect to the part of Ground 1F in which Riley claims that his counsel should have introduced more evidence of his history of illegal drug use — perhaps evidence other than the testimony Riley prevented his counsel from presenting — such evidence necessarily would have carried dangers along with any potential for mitigation. Evidence highlighting Riley's history of illegal drug use would have shown the jury that Riley had long engaged in illegal activity. Such evidence may have been more damaging than mitigating in the eyes of some jurors. This tempers any mitigation effect to be expected from evidence concerning Riley's long-time drug use.
In conclusion, the court finds that the Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The court will deny habeas corpus relief with respect to Ground 1F.
Ground 1K
In Ground 1K, Riley claims that his trial counsel were ineffective because of their "failure to demand on behalf of Mr. Riley all resources necessary to provide adequate representation, or to make an adequate record for the refusal of any suchresources." Second Amended Petition, p. 60, lines 10-12. Riley claims that his counsel, the Clark County Public Defender (CCPD), asked him to take a polygraph examination, and he declined. Id. at 60-63. According to Riley, the CCPD allocated insufficient resources to his defense, and "the denial of the expenditure of resources in his case is related to his refusal to undergo a polygraph examination, despite his attorney's insistence." Id. at 60-61. Riley claims that, as a result, his counsel did not conduct an adequate investigation, and failed to consult with or retain a ballistic or crime scene expert, an expert on cocaine and its effects, and an expert regarding organic brain injury. Id. at 60-63.
The court finds that Ground 1K does not set forth a viable claim for habeas corpus relief.
The CCPD's use of polygraph examinations was the subject of the court of appeals' decision in Miranda v. Clark County, Nevada, 319 F.3d 465 (9th Cir. 2003) (en banc). Miranda was a civil rights action, dismissed in the district court, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. See Miranda, 319 F.3d at 466-67. The court of appeals held that the CCPD's practice of subjecting clients to polygraph examinations, and basing decisions regarding allocation of resources on the results, amounted to deliberate indifference to the constitutional requirement that every criminal defendant receive adequate representation regardless of innocence or guilt. Id. at 470. The court of appeals reversed the judgment in favor of the defendants, and remanded the case to the district court for further proceedings. Id. at 469-71. In Miranda, however, the court of appeals did not hold that the CCPD's use of polygraph examinations in determining how to allocate resources was necessarily itself a violation of the defendant's right to effective assistance of counsel. Rather, the holding was that, in employing that policy, the CCPD was deliberately indifferent to the possibility of such a constitutional violation. As this court reads Miranda, the question whether there in fact was a constitutional violation — a denial of effective assistance of counsel — was to be resolved on remand. See Miranda, 319 F.3d at 469-70.
In United States v. Cronic, 466 U.S. 648 (1984), the Court recognized that prejudice is in most cases an essential part of a claim of ineffective assistance of counsel:
[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.Cronic, 466 U.S. at 658. However, the Cronic Court went on to hold that there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. Examples of such circumstances are complete denial of counsel at a critical stage of trial or failure on the part of counsel to subject the prosecution's case to meaningful adversarial testing. Id. at 659. "Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Id. at 659-60. In this case, Riley's claims regarding the CCPD's use of polygraph testing do not show that Riley's defense was so undermined that there should be a presumption of prejudice, under Cronic, without inquiry into the actual conduct of the trial. See Miranda, 319 F.3d at 470 (stating that the policy to use polygraph examinations in determining allocation of resources did not amount to a complete denial of counsel). Therefore, the court determines that Ground 1K does not set forth a viable claim that the CCPD's use of the polygraph examination in evaluating cases, per se, was a violation of Riley's right to effective assistance of counsel.
Riley does allege certain specific effects of the polygraph policy. Riley claims that his counsel "did not expend the resources necessary to conduct a thorough investigation of his offense and his life history." Second Amended Petition, p. 60, lines 16-18. That, however, is simply a generalized statement of claims made in Grounds 1A (investigation of offense) and 1F (investigation of life history). Riley also claims that, because of inadequate resources, his counsel "failed to consult with or retain a ballistic[s] or crime scene expert, a mental health profession[al] familiar with cocaine and its effects, and an expert regarding organic brain injury." Id. at p. 60, lines 21-23. Here again, though, those are simply generalized statements of claims made in Grounds 1B (ballistics or crime scene expert), 1C (expert on cocaine and its effects), and 1G (expert on organic brain injury). The addition of the allegations regarding the polygraph testing, as an explanation for the alleged ineffective assistance of counsel, does not render Ground 1K a viable independent claim to be adjudicated separately from Grounds 1A, 1B, 1C, 1F, and 1G.
Because it does not independently state a viable claim for habeas corpus relief, the court will deny Riley habeas corpus relief on Ground 1K.
Ground 1L
In Ground 1L, Riley claims that his trial counsel were ineffective because they failed to object to prosecutorial misconduct. Second Amended Petition, pp. 63-64. Riley makes this same claim in Ground 20. See Second Amended Petition, pp. 128-31. Ground 1L adds nothing to Ground 20. The court, therefore, addresses this claim in the discussion of Ground 20, below.
Ground 1M
In Ground 1M, Riley claims that his trial counsel were ineffective because they failed to obtain proper jury instructions. Second Amended Petition, p. 64. Specifically, Riley claims that the jury instructions given at both the guilt and penalty phases of his trial were improper, as he asserts in Grounds 8, 9, 10, 11, 12, 14, 15, and 16, and he claims that his trial counsel were ineffective for failing to object and to obtain proper jury instructions. Id. Riley incorporates into Ground 1M the factual allegations, allegations of prejudice, and argument in Grounds 8, 9, 10, 11, 12, 14, 15, and 16. Id. In each of Grounds 8, 9, 10, 11, 12, 14, 15, and 16, Riley includes the same claims of ineffective assistance of counsel. See Second Amended Petition, pp. 97 and 100-01 (Ground 8), 104-05 (Ground 9), 106 (Ground 10), 109 (Ground 11), 110 (Ground 12), 113-15 (Ground 14), 117-18 (Ground 15), and 119-20 (Ground 16). Ground 1M adds nothing to the claims in Grounds 8, 9, 10, 11, 12, 14, 15, and 16. The court, therefore, addresses these claims in the discussions of Grounds 8, 9, 10, 11, 12, 14, 15, and 16, below.
Ground 1N
In Ground 1N, Riley claims that his trial counsel were ineffective because they failed to object to his absence during the settlement of jury instructions at both the guilt and penalty phases of his trial. Second Amended Petition, pp. 64-65.
The Supreme Court has held that, under the Sixth and Fourteenth Amendments, a criminal defendant has a constitutional right to be present at all critical stages of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). More specifically, "a defendant has a due process right to be present at a proceeding `whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . . [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). A defendant has no right to be present "when presence would be useless, or the benefit but a shadow." Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Synder, 291 U.S. at 106-07). In essence, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Stincer, 482 U.S. at 745.
Several federal appellate courts, including the Ninth Circuit Court of Appeals, have held that the right of criminal defendants to be present at all critical stages of trial does not extend to conferences dealing only with the legal questions involved in formulating proper jury instructions. See United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987); see also United States v. Rubin, 37 F.3d 49, 54 (2nd Cir. 1994); Larson v. Tansy, 911 F.2d 392, 395 (10th Cir. 1990); United States v. Graves, 669 F.2d 964, 971-73 (5th Cir. 1982); United States v. Gregorio, 497 F.2d 1253 (4th Cir. 1974), overruled on other grounds by United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994); see also Fed.R.Crim.P. 43(c)(3) (excusing the presence of the defendant, in a federal criminal trial, at "a conference or argument upon a question of law"). Riley does not cite any authority to support the proposition that he had a constitutional right to be present at the jury instruction conferences. See Second Amended Petition, pp. 64-65; see also Reply (no mention of this claim in reply).
Riley does not assert that his presence at the jury instruction conferences would have contributed to the fairness of the conferences, served any useful purpose, or had any effect on the court's rulings. See Snyder, 291 U.S. at 106-07; Stincer, 482 U.S. at 745.
Riley's federal constitutional rights were not violated on account of his absence from the jury instruction conferences, and Riley's counsel were not ineffective for failing to object to his absence from those conferences. The court will deny habeas corpus relief on Ground 1N.
Ground 10
In Ground 10, Riley claims that his trial counsel were ineffective because they failed to seek a new trial on account of juror coercion. Second Amended Petition, pp. 65-66.
Riley claims in Ground 10 that his counsel "had access to critical evidence suggesting that at least one juror's verdict was coerced." Second Amended Petition, p. 65. lines 9-11. Riley does not, however, set forth any allegations describing the alleged coercion by other jurors. Id. at 65-66.
In support of this claim, Riley proffers evidence, in the form of notes of his trial counsel, presumably made in connection with the interview of a juror. Those notes state:
Thought someone else could have done it. Nobody cared about Darrell Lee's testimony. Everyone gave her a hard time about her stand. All other convinced her. Still feels another person could have committed murder.
* * *
Wouldn't mind talking to attorney's.
Exhibit P243 (as in original). According to Riley, his counsel were remiss for not further investigating possible coercion of this holdout juror.
While his first state petition was pending, Riley's counsel evidently received information from the husband of the holdout juror:
[He] made it very plain to me that while [his wife] was the only member of the jury that held out for as long as possible concerning the death penalty for Mr. Riley, that in the end she was convinced of his guilt and went along with the death penalty sentence.
Exhibit 245, p. 1. The husband of the holdout juror indicated that his wife did not wish to speak to Riley's counsel about the matter. Id. at pp. 1-2.
Later, during the pendency of Riley's first federal habeas petition, Riley's counsel evidently interviewed a juror, and that juror provided the following information:
At the penalty phase, there was a juror who was an attorney's wife who did not want to give Billy Ray the death penalty. When she would not move on her position, the jurors asked her why during the voir dire of the jury panel, she said she would vote for the death penalty if he was found guilty of first degree murder and now she was changing her position. She said she was not absolutely sure Billy Ray was guilty.
We then reviewed the case in its entirety again and finally persuaded her to change her vote.
Exhibit 209, p. 2, ¶ 10.
In addition, Riley points to the trial court's interaction with the jurors, during their deliberations regarding Riley's sentence, as another factor that contributed to the coercion of the holdout juror. Second Amended Petition, pp. 65-66. After deliberating for about seven and a half hours, the jury reported that it had not reached a verdict. See Exhibit R30, p. 87. The judge asked the jury foreman whether a vote had been taken, and the foreman reported that one had been taken. Id. at 87-88. The foreman stated that the vote was 11 to 1, and that had been the vote for about three hours. Id. at 88. The judge did not ask which way the majority of eleven was voting, and the foreman did not say. Id. The foreman then stated that he believed that the jury could reach a verdict, and he requested that the jury be given additional time to do so. Id. at 88-89. The judge sent the jury back for further deliberation. Id. at 89. About 45 minutes later, the jury returned with its verdict, recommending the death penalty. Id. at 89-92.
Riley asserts that "[a]n independent, thorough investigation of the circumstances of the verdict would have revealed that the lone juror supporting a lesser sentence was coerced by the other jurors and the trial judge's instructions into returning a sentence of death." Second Amended Petition, p. 66, lines 5-8. The facts alleged by Riley do not amount to improper coercion of the holdout juror, and do not substantiate Riley's conclusory claim in Ground 10.
The fact that the juror held out for several hours for a lesser sentence, but then was convinced by the other jurors to vote for the death penalty, does not necessarily indicate improper coercion. See Williams v. Florida, 399 U.S. 78, 101 n. 49 (1970) ("Studies . . . suggest that jurors in the minority on the first ballot are likely to be influenced by the proportional size of the majority aligned against them."). The statement of the other juror suggests that the deliberations followed an appropriate course, resulting in the persuasion of the holdout juror:
She said she was not absolutely sure Billy Ray was guilty. We then reviewed the case in its entirety again and finally persuaded her to change her vote.
Exhibit P209, p. 2, ¶ 10. The husband of the holdout juror also indicated that ultimately the holdout juror was convinced: "[I]n the end she was convinced of his guilt and went along with the death penalty sentence." Exhibit 245, p. 1. That the other jurors "gave her a hard time about her stand" (see Exhibit P243), and "persuaded her to change her vote" (see Exhibit P209), does not indicate anything more than that there was disagreement and debate among the jurors. That is not a sign of improper coercion.
Furthermore, the trial judge's communication with the jury during their deliberations did not violate Riley's rights, under state law or federal constitutional law, and was not improper coercion of the holdout juror. See discussion of Ground 18, below.
Riley sets forth no allegations showing any grounds for a motion for a new trial on account of juror coercion. Trial counsel knew only that there was one juror that held out for some time for a lesser sentence, but was ultimately convinced to vote for the death sentence, and that the trial court questioned the jury in a manner acceptable under Nevada law and federal constitutional law; under those circumstances, counsel did not act unreasonably in not pursuing further investigation of the jury deliberations, and in not seeking a new trial on grounds of juror coercion. The court will deny habeas corpus relief on Ground 10.
Ground 1P
In Ground 1P, Riley claims that his trial counsel were ineffective because they failed to inform him, and the trial court, that one of his attorneys, Eugene Martin, had previously represented Darrell Lee Jackson, the prosecution's eyewitness. Second Amended Petition, pp. 66-67.
Under the Sixth Amendment, a criminal defendant has the right to effective assistance of counsel, including representation free from conflicts of interest. Strickland, 466 U.S. at 692. While ineffective assistance of counsel claims generally require the petitioner to show deficient representation and prejudice, the federal courts will "forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict" in instances "where assistance of counsel has been denied entirely or during a critical stage of the proceeding." Mickens v. Taylor, 535 U.S. 162, 166 (2002). Circumstances of such magnitude may "arise when the defendant's attorney actively represented conflicting interests." Id. at 166; see also Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). However, in order to establish a Sixth Amendment violation under this line of authority, the petitioner must demonstrate that "an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348. An actual conflict is not "something separate and apart from adverse effect." Mickens, 535 U.S. at 172 n. 5. Rather, "[a]n `actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Id.; see also United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005) ("Under this standard, an actual conflict is a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties."); Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006) ("To show an actual conflict resulting in an adverse effect, [the petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.").
Riley alleges in his second amended petition that Martin's previous representation of Jackson created a conflict of interest. Second Amended Petition, p. 66. According to Riley, "Attorney Martin suffered divided loyalties between his previous client and Mr. Riley." Id. at 66-67. Riley continues: "In order to successfully defend Mr. Riley, Attorney Martin was required to suggest — or even prove — that Mr. Jackson shot Mr. Bolin." Id. at 67. Riley goes on to claim that there was evidence available to impeach Jackson, but his counsel did not discover it, suggesting that Martin's conflict of interest hindered counsel's investigation of Jackson's credibility. Id.
The court granted Riley an evidentiary hearing on this claim. See Order entered June 23, 2009, pp. 42-44. The evidentiary hearing was held on May 11, 2010. At the evidentiary hearing, Martin testified, as did Riley's other trial attorney, Stephen Dahl. Exhibits were introduced into evidence.
The testimony and evidence at the evidentiary hearing showed that, in 1987, Jackson was convicted of possession of a controlled substance, and that, in that case, he was represented by a Clark County public defender named Michael Miller. The testimony and evidence showed that on one occasion in that case, on December 23, 1987, at a "Bench Warrant Return" hearing, Martin, then with the CCPD, appeared before the court for Miller, and requested a continuance. The minutes of the court from that date state, in their entirety:
BENCH WARRANT RETURN State represented by Tom Fitzpatrick, DDA. Defendant Jackson present in custody with Eugene Martin, DPD, appearing for Michael Miller, DPD. Mr. Martin requested matter be continued one week for Mr. Miller's presence. Defendant requested his bond be reinstated. COURT ORDERED, bail will be set at $3,000 cash or surety. Matter continued one week for Bench Warrant Return and Further Proceedings.
Petitioner's Exhibit 10, Admitted into Evidence at May 11, 2010 Evidentiary Hearing. That inconsequential appearance, simply to request a short continuance until Miller could be present, was Martin's only appearance or activity in Jackson's 1987 drug case. Martin testified that he did not remember making that appearance.
Both Martin and Dahl testified, unequivocally, that their representation of Riley, two years later, was not affected in any way by Martin's appearance on that one occasion in Jackson's case. Their decisions, strategies, and tactics in Riley's case had nothing to do with that appearance.
Based on the testimony and evidence at the evidentiary hearing, this court finds that there was no actual conflict, and that Martin's inconsequential appearance in Jackson's case had no effect on the assistance of counsel that Riley received from Martin and Dahl.
Therefore, Riley is not entitled to habeas corpus relief on Ground 1P. See Sullivan, 446 U.S. at 348 (Petitioner must demonstrate that "an actual conflict of interest adversely affected his lawyer's performance."); Mickens, 535 U.S. at 172 n. 5; Wells, 394 F.3d at 733; Hovey, 458 F.3d at 908. The court will deny habeas corpus relief on Ground 1P.
At the evidentiary hearing, Riley's counsel asserted that, because Jackson was represented by the CCPD, the entire CCPD's office had a conflict, precluding their representation of Riley, and, on this basis, Riley should be granted habeas corpus relief on Ground 1P. This theory was not plead in Riley's second amended habeas petition. See Second Amended Petition, pp. 66-67. And, at any rate, Riley has not shown this theory to be supported by any precedent. In order for a petitioner to obtain federal habeas corpus relief under the Sixth Amendment, based on a conflict on the part of counsel, the petitioner must demonstrate that "an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348; see also Mickens, 535 U.S. at 172 n. 5; Wells, 394 F.3d at 733; Hovey, 458 F.3d at 908. Riley has failed to make such a showing.
Ground 1Q
In Ground 1Q, Riley claims that his appellate counsel was ineffective for failing to raise certain claims on direct appeal. Second Amended Petition, pp. 67-68. Specifically, Riley complains of his appellate counsel's failure to raise the claims set forth in Grounds 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 25. Id.
In the order entered on March 23, 2007, the court determined that this claim is unexhausted in state court to the extent it is based on the failure to raise on direct appeal the claims asserted in Grounds 5 and 6. See Order entered March 23, 2007 (docket #116), pp. 9-10. Consequently, Riley has abandoned those parts of Ground 1Q. See Notice of Abandonment of Unexhausted Claims (docket #117).
Ground 1Q remains before the court to the extent it claims that appellate counsel was ineffective for not raising, on direct appeal, the claims in Grounds 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 25. With respect to those claims, in the order entered March 23, 2007, the court determined that this claim was exhausted by Riley in his second state petition. See Order entered March 23, 2007 (docket #116), pp. 9-10. The state courts, however, did not resolve Riley's second state petition on its merits; rather, the state courts dismissed that petition as procedurally defaulted. See Exhibits P4, P19. Therefore, this court conducts a de novo review of the parts of Ground 1Q asserting that appellate counsel was ineffective for not raising, on direct appeal, the claims in Grounds 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 25.
Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed under Strickland's two-pronged test. Smith v. Robbins, 528 U.S. 259, 286 (2000); see also Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). Appellate counsel has no constitutional obligation to raise every nonfrivolous issue. Jones v. Barnes, 463 U.S. 745, 751-54 (1983).
Each of the claims of ineffective assistance of appellate counsel raised by Riley in Ground 1Q, and still to be resolved, is addressed in the context of the discussion, below, regarding the substantive claim that Riley contends should have been raised on direct appeal. Therefore, the remaining Ground 1Q claims are addressed in the discussions of Grounds 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 25, below.
Ground 1S(1)
In Ground 1S(1), Riley claims that his counsel were ineffective because the CCPD lacked resources, because the CCPD required its clients to submit to a polygraph examination, and because the CCPD discriminated against its African American clients on account of their race. Second Amended Petition, pp. 68-74.
To the extent that Riley claims in Ground 1S(1) that his constitutional rights were denied because of the CCPD's request that he submit to a polygraph examination, and the CCPD's consideration of his refusal to do so in allocating resources to his case, this claim is the same as the claim made in Ground 1K, and the court will deny habeas corpus relief on this part of Ground 1S(1) for the same reasons it denies relief on Ground 1K. See discussion regarding Ground 1K, supra.
Riley does not cite any authority supporting a claim that the CCPD's alleged lack of adequate resources for his defense, or the CCPD's alleged discrimination against African-American clients, per se, without any showing of prejudice to his defense, is grounds for federal habeas corpus relief. This court concludes that neither is. See Cronic, 466 U.S. at 658-59. Under Strickland, claims of ineffective assistance of counsel generally require a showing of prejudice.
Riley makes only vague claims of prejudice in Ground 1S(1). See Second Amended Petition, pp. 68, 72-74. Reading Ground 1S(1) liberally, Riley might be understood to claim that, because of the CCPD's lack of resources, and because of the CCPD's racial discrimination, his counsel failed to retain a ballistics expert (id., p. 70, lines 23-24), failed to retain an expert on cocaine (id., p. 70, lines 24-27), failed to conduct an adequate mitigation investigation (id., p. 70, line 27 — p. 71, line 3), failed to retain an expert on organic brain injury (id., p. 71, lines 3-4), and failed to conduct an adequate guilt-phase investigation (p. 71, lines 6-15 and 17-24). These claims, though, are simply generalized statements of claims made by Riley in Grounds 1A (guilt-phase investigation),
1B (ballistics expert), 1C (cocaine expert), 1F (mitigation investigation), and 1G (organic brain injury). The addition of the alleged explanation for these alleged instances of ineffective assistance of counsel does not render this an independent claim, to be adjudicated separately from Grounds 1A, 1B, 1C, 1F, and 1G. The court will deny habeas corpus relief with respect to Ground 1S(1).
Ground 1S(2)
In Ground 1S(2), Riley claims that he was prejudiced by the cumulative effect of all his attorneys' alleged errors. Second Amended Petition, pp. 73-74.
In analyzing prejudice, with regard to claims of ineffective assistance of counsel, the question is "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. Even if no single error is sufficiently prejudicial to warrant habeas corpus relief, where there are several errors, their cumulative effect may nevertheless be so prejudicial as to warrant relief. See Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998); Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995).
That is not the case here. In Strickland, the Supreme Court instructed that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. The evidence of Riley's guilt was overwhelming. See discussion of Ground 1A, supra. The court finds that there is no reasonable probability that, absent the alleged errors of Riley's counsel, the jury would have had a reasonable doubt respecting Riley's guilt.
Here, the court considers, cumulatively, all the claimed errors of counsel affecting the guilt phase of Riley's trial, where the court has resolved the claims, in whole or in part, on harmless error grounds. This includes claims in Grounds 1A, 1B, 1C, 1L, 1M, 1Q, 3, 4, 7, 8, 14, 16, 20, and 21.
Furthermore, with respect to the penalty phase of Riley's trial, as well, the court finds that there is no reasonable probability that, absent all the alleged errors of Riley's counsel, the jury would have found differently regarding Riley's sentence.
Here, the court considers, cumulatively, all the claimed errors of counsel affecting the penalty phase of Riley's trial, where the court has resolved the claims, in whole or in part, on harmless error grounds. This includes claims in Grounds 1C, 1F, 1L, 1M, 1Q, 7, 10, 11, 12, 13, 14, 19, 20, and 21.
The court will deny habeas corpus relief with respect to Ground 1S(2).
Ground 3
In Ground 3, Riley claims that his federal constitutional rights were violated as a result of the failure of the prosecution to disclose to the defense information regarding Darrell Lee Jackson, and as a result of ineffective assistance of his trial counsel on account of their failure to effectively impeach Jackson. Second Amended Petition, pp. 79-84.
If exculpatory or impeachment evidence is not disclosed by the prosecution, and prejudice to the defendant results, the defendant is deprived of due process of law. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); United States v. Bagley, 473 U.S. 667 (1985). The three elements of such a due process violation are: (1) "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;" (2) "that evidence must have been suppressed by the State, either willfully or inadvertently;" and (3) "prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In determining whether the defendant was prejudiced, the question is "whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Strickler, 527 U.S. at 290 (citations and internal quotation marks omitted); see also Bagley, 473 U.S. at 676; United States v. Agurs, 427 U.S. 97, 111-12 (1976). In other words, the undisclosed evidence was material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v.Whitley, 514 U.S. 419, 433 (1995) (quoting Bagley, 473 U.S. at 682). For purposes of determining prejudice, the withheld evidence is analyzed "in the context of the entire record." Agurs, 427 U.S. at 112.
Riley claims that the prosecution "failed to disclose criminal activity on the part of Darrell Lee Jackson" (Second Amended Petition, p. 79, lines 24-25) and "failed to disclose the existence of . . . material exculpatory and impeachment evidence in this case regarding the charges pending against Mr. Jackson and their ultimate disposition" (id., p. 83, lines 17-19). However, Riley has proffered no evidence to substantiate these claims. Most importantly, Riley does not indicate what information about Jackson the prosecution did and did not turn over to the defense. See id. The court has before it only Riley's conclusory allegations.
Regarding the question of the nature of Jackson's criminal history, Riley has submitted a criminal history report, Exhibit P224, which was apparently printed after Riley's trial. Riley submits no evidence to explain this cryptic document.
Referring only to the criminal history report, Riley claims that the prosecution failed to inform the defense of the following:
— Jackson was arrested about two months before Riley's trial and charged with possession of narcotics paraphernalia and lodging without consent; — Jackson was again arrested about a month and a half before Riley's trial, and charged with possession of a controlled substance. See Second Amended Petition, pp. 82-83.Under Nevada evidence law, a witness may be impeached with convictions, but not with mere arrests or criminal charges. See NRS 50.095 (use of felony convictions to impeach witness); NRS 50.085(3) (impeachment using specific instances of conduct relevant to truthfulness); Azbill v. State, 88 Nev. 240, 246-47, 495 P.2d 1064, 1068 (1972) ("[I]t is the established law in this state that the credibility of a witness may be attacked by showing his conviction of a felony but not by his mere arrest."). Under Nevada law, then, it appears that Jackson's arrests and alleged criminal conduct unrelated to truthfulness would not have been proper bases for impeachment of his testimony. Riley has not made any showing to the contrary. See Answer, pp. 55-56; Reply.
Even if Riley were able to substantiate his claims that Jackson's arrests could have been used for impeachment and that the prosecution did not disclose those arrests — neither of which he has done — the court finds, in light of the entire record, that there is no reasonable probability that, had such information been disclosed to the defense and admitted to impeach Jackson, the result of the trial would have been different. It was clear at trial, from Jackson's own testimony, that Jackson was a seller and user of illegal drugs. See, e.g., Exhibit R17, pp. 349-56, 367-68. In addition, the prosecution elicited from Jackson testimony that he had been convicted of burglary in 1985, and possession of a controlled substance in 1988. See id. at p. 347. Therefore, in the context of the evidence at trial, it would have added little to show that Jackson had been arrested for possession of a controlled substance, possession of narcotics paraphernalia, and lodging without consent. That information would have been consistent with what the jury knew about Jackson.
Riley also claims that he suffered ineffective assistance of counsel "when his trial counsel failed to impeach Mr. Jackson with his extensive criminal history." Second Amended Petition, p. 84, ¶ 15. As is mentioned above, the prosecution elicited from Jackson testimony that he had been convicted of burglary in 1985, and possession of a controlled substance in 1988. See Exhibit R17, p. 347. Riley does not show what in Jackson's criminal record, beyond that, might have been admissible to impeach Jackson, much less that such impeachment might reasonably have had an impact on the outcome of the trial.
Finally, Riley appears to claim that the prosecution failed to disclose to him that, in the month before Riley's trial, the district attorney had denied prosecution of Jackson on a charge of possession of a controlled substance, and that Riley had been "released from jail due to overcrowding." See Second Amended Petition, pp. 82-83. Riley also points out that Jackson was originally charged with kidnapping, as a result of the events of October 1, 1989, but those charges against Jackson were dismissed prior to Riley's trial. Id. at p. 84, ¶ 15. Evidence of a deal or promise of lenient treatment in exchange for a witness' testimony against a defendant may constitute evidence that must be disclosed under Brady. See Giglio, 405 U.S. at 154-55. Here again, however, there is no evidence to show what the prosecution did or did not disclose to the defense with respect to these matters. Furthermore, Riley submits no evidence indicating that the dismissal of the kidnapping charges, or the denial of the drug possession charge, or Jackson's release from jail, was related to Jackson's testimony in Riley's trial.
The court will deny habeas corpus relief with respect to Ground 3.
Ground 4
In Ground 4, Riley claims that his constitutional rights were violated "due to the State's failure to properly preserve evidence, secure the crime scene and disclose its contamination, and trial counsel's failure to request this evidence and cross-examine the police officers about their inadequate investigation." Second Amended Petition, p. 85, lines 2-6. Riley alleges that the police investigation was substandard because: the investigating officers failed to preserve and examine the clothing of Bollin, Jackson, and Riley; the investigating officers failed to preserve the barrel of the shotgun used in the shooting of Bollin; the investigating officers failed to take appropriate measurements at the crime scene; the investigating officers failed to appropriately photograph and diagram the crime scene; the investigating officers failed to maintain a comprehensive log of all persons who entered the crime scene; the investigating officers failed to investigate, locate, and interview all persons who entered the crime scene before the officers' arrival; the investigating officers failed to preserve tape recordings of investigative interviews with witnesses, and notes taken by officers and others; the investigating officers failed to record or videotape interviews; the investigating officers failed to preserve and disclose notes regarding laboratory examinations; and the investigating officers failed to document and disclose the contamination of the crime scene that occurred before the officers arrived. See id. at pp. 85-90.
Riley submits the declaration of Gaylan Warren, a forensic microscopist and firearms expert, who opines that the police investigation was substandard in that: the clothing of Bollin, Jackson, and Riley was not tested and preserved; tissue samples were not taken from Bollin, examined, and preserved; and the number and quality of the photos taken at the crime scene and at the autopsy were inadequate. Exhibit P201. Riley also submits the declaration of Thomas W. Casler, an investigator who spoke to Bob Amundsen, one of the investigating officers who processed the crime scene. Exhibit P206. Casler states that Amundsen described what are, in Casler's opinion, shortcomings of the investigation with respect to the processing of the clothing of Jackson and Riley, photography of the crime scene, collection of evidence, measurement and analysis of blood spatter, and contamination of the crime scene. Exhibit P206.
A bad faith failure to collect or preserve potentially exculpatory evidence violates the due process clause of the federal constitution. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1117 (9th Cir. 2001); Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989). In Youngblood, the Supreme Court specifically held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Youngblood, 488 U.S. at 58; see also California v. Trombetta, 467 U.S. 51 (1988).
In this case, with respect to nearly all the claimed shortcomings of the investigation, Riley makes no allegation that the police acted in bad faith in failing to collect, analyze, or preserve evidence. See Second Amended Petition, pp. 85-90.
There is only one place in Ground 4 where Riley may be understood to allege bad faith; this involves Riley's claim that the investigating officers failed to preserve and disclose notes regarding laboratory examinations. There, Riley alleges:
State agents have continued to commit acts and omissions designed to prevent Mr. Riley from ascertaining the factual basis of potential challenges to his conviction and sentence. Mr. Riley subpoenaed from the North Las Vegas Police Department all documents in its possession, including bench notes of laboratory examinations. Despite the fact that, in all capital cases, it is departmental policy for the police to maintain their notebooks, these notebooks are missing in this case, and no such notes have been produced.
Second Amended Petition, p. 86, ¶ 6. This is Riley's entire presentation of this claim. There is no citation to any evidence at all to substantiate a claim that State agents intentionally sought to prevent Riley from ascertaining the factual basis of potential challenges to his conviction and sentence. There is no evidence presented to show the departmental policy alleged by Riley. There is no evidence to show that the notes Riley sought ever existed, or that they are missing, or that they were not produced. Also, there is no explanation — and no evidence to show — how the allegedly missing notes might have benefitted Riley's case. Riley did not request an evidentiary hearing on this claim. Therefore, with respect to the one aspect of Ground 4 where Riley appears to allege bad faith, his claim is conclusory and unsupported by any evidence.
As for the rest of Ground 4, Riley does not allege, much less prove, bad faith. And, again, Riley did not request an evidentiary hearing on this claim. Riley's claims regarding the failure of the police to collect, analyze, and preserve evidence therefore fail.
Riley's related claim of ineffective assistance of counsel also fails. This claim of ineffective assistance of counsel is stated by Riley, in its entirety, as follows:
In the alternative, Mr. Riley was deprived of his right to effective assistance of counsel when trial counsel failed to request this information and evidence from the State and when trial counsel failed to cross-examine the police officers who testified at trial about the deficiencies in their investigation. The completely cursory nature of the police investigation in this case and their complete failure to determine whether the physical evidence matched Mr. Jackson's account of the shooting would have raised a reasonable doubt in the minds of the jurors. There was no strategic reason for trial counsels' failure to request this evidence or cross-examine the police about the poor quality of their investigation, and there is a reason[able] probability that a more favorable result would have been obtained had trial counsel done so.
Second Amended Petition, p. 87, ¶ 8. This claim is too conclusory, and unsupported, to warrant habeas corpus relief. The claim refers in wholesale fashion to wide-ranging allegations of deficiencies in the investigation of Bollin's murder. Riley does not specify what evidence he believes might have been available for the prosecution to turn over to his trial counsel had his trial counsel made a request. Riley does not specify which prosecution witnesses might have been impeached. Riley does not describe the cross-examination that he feels should have been conducted. Riley does not explain in any detail the prejudice that he believes he suffered by not having the benefit of the cross-examination. Riley cites no evidence to support this claim of ineffective assistance of counsel, and he does not request an evidentiary hearing on it. The court finds that Riley has not shown his trial counsel's work, in this regard, to have been substandard, and he has not shown prejudice. See Strickland, 466 U.S. at 688-97.
The court will deny habeas corpus relief on Ground 4.
Ground 7
In Ground 7, Riley claims that "he was deprived of his constitutional right to effective assistance of counsel, trial by jury, due process of law, equal protection of the laws, and a reliable sentence due to trial counsels' stipulation to dismiss a prospective juror." Second Amended Petition, p. 95, lines 2-4.
Riley raised this claim of ineffective assistance of counsel, and this claim of denial of his right to trial by a fair and impartial jury, in his first state habeas petition (Exhibit R71, pp. 12-16), and on the appeal from the denial of that petition (Exhibit R94, pp. 21, 25-28, and Exhibit R98, pp. 19-20). The Nevada Supreme Court affirmed the denial of relief on those claims, ruling as follows:
Riley argues that he was denied effective assistance of counsel because Dahl [Riley's counsel] failed to object to the improper striking of a potential juror and because Dahl failed to rehabilitate her after the judge's voir dire questioning indicated she did not have the capacity to serve as a juror. This argument fails on both the adequacy of performance and prejudice prongs.
Riley argues that the judge excused the juror because she "indicate[d] that the capital nature of the case would cause [her] to be more emotionally involved. . . ." (Citing Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).) The district court judge found, however, that the trial judge excused the potential juror because she appeared entirely confused. In fact, the trial judge never asked the juror specifically about her feelings regarding the death penalty, because it was clear she was confused by the most simple legal concepts.
The entire colloquy with the potential juror, apart from questions designed to elicit background information of a personal nature, consisted of the following:
Q: Thank you. And do you believe in the presumption of innocence?
A: Yes.
Q: Do you presume Mr. Riley to be innocent at this time?
A: I wouldn't know.
Q: Well, do you believe him to be innocent under the presumption of innocence?
A: Yes.
Q: And is there anything in your background or your upbringing that will prevent you from bringing back a death penalty under the appropriate case?
A: Pardon me?
Q: The death penalty?
A: No.
Q: Can you do that under the appropriate case?
A: No.
Q: You feel you are prejudiced?
A: No, I am not prejudiced.
THE COURT: Any objection I excuse [the juror?]
[COUNSEL]: None, your Honor.
The potential juror contradicted herself numerous times in this short discussion with the judge. The judge then excused her sua sponte, without objection. There is nothing in the record to show that the judge dismissed the potential juror because she indicated she would have any difficulty imposing the death penalty. In fact, she actually answered no to the question whether she had anything in her background or upbringing that would prevent her from imposing the death penalty in the appropriate case. As a result, the district court's finding that the potential juror was "confused as to the nature of the criminal process" is supported by substantial evidence; it was therefore not ineffective for Dahl to have failed to object to the striking of this confused potential juror.
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Riley claims that he was denied a fair and impartial jury when the trial judge excused, without objection, the potential juror who expressed confusion in the voir dire of the jury venire. This claim was waived when Riley failed to present it on direct appeal. See NRS 1177.375 (repealed Jan. 1, 1994). Nevertheless, we have already concluded that there was nothing objectionable about the dismissal of the confused potential juror; as a result, Riley was not denied his constitutional right to a fair and impartial jury.
Exhibit R102, pp. 19-22.
To the extent the claims in Ground 7 were ruled upon by the Nevada Supreme Court, this court considers Riley's claims under the standards imposed by AEDPA and set forth in 28 U.S.C. § 2254(d), and concludes that the Nevada Supreme Court's denial of relief was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The potential juror had difficulty communicating with the judge regarding basic legal concepts. Perhaps this had to do with the fact that she did not have her hearing aides. See Exhibit R14, p. 78, lines 15-25. At any rate, there is ample support in the record for the state courts' determination that the potential juror was discharged not because of her views regarding the death penalty, but because of her confusion. Riley has made no showing that counsel acted unreasonably in agreeing to the discharge of the confused potential juror. Furthermore, Riley makes no showing that he was prejudiced by his counsel's actions in this regard. See Strickland v. Washington, 466 U.S. 668 (1984).
To the extent that Riley has, in this case, expanded upon the claims addressed by the Nevada Supreme Court on the appeal from the denial of his first state petition, by citing his constitutional rights to due process of law, equal protection of the laws, and a reliable sentence (see Second Amended Petition, p. 95, lines 2-4), the new claims were not resolved on their merits in the context of Riley's second state petition. See Exhibits P4, P19. This court conducts a de novo review of claims not addressed on their merits in the state courts, without applying the deferential standards imposed by section 2254(d). See Pirtle, 313 F.3d at 1167. Riley has made no showing at all — no argument and no evidence proffered — to substantiate a claim that the discharge of the potential juror violated his constitutional rights to due process of law, equal protection of the laws, and a reliable sentence. His claims under these constitutional provisions are conclusory and unsupported.
Riley claims in Ground 1Q that his appellate counsel was ineffective for not raising on direct appeal the claims he asserts in Ground 7. This claim of ineffective assistance of appellate counsel fails. It is plain from the ruling of the Nevada Supreme Court, on the appeal from the denial of his first state habeas petition, that the Nevada Supreme Court would not have granted relief on any of these claims on direct appeal. See Exhibit R102, pp. 19-22. The claims made in Ground 7 are therefore without merit. Riley cannot show that his appellate counsel acted unreasonably in not raising meritless claims on his direct appeal, or that he was thereby prejudiced.
The court will deny habeas corpus relief with respect to Ground 7, and also with respect to Ground 1Q, to the extent it claims ineffective assistance of appellate counsel for not raising on direct appeal the claims raised in Ground 7.
Ground 8
In Ground 8, Riley claims that his federal constitutional rights were violated because the trial court failed to properly instruct the jury regarding "premeditation and deliberation" and "malice aforethought." Second Amended Petition, p. 97-101. In addition, Riley claims that his counsel was ineffective with respect to their handling of these issues. Id. at 100-01.
In this claim, Riley puts at issue the so-called "Kazalyn instruction," a jury instruction approved in 1992 by the Nevada Supreme Court in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), and disapproved by the same court eight years later in By ford v. State, 116 Nev. 215, 994 P.2d 700 (2000). The Kazalyn instruction, given in the guilt phase of Riley's trial, stated:
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder.
Exhibit P268, Instruction No. 8. Riley argues that this instruction was unconstitutional because it collapsed into one the definitions of "premeditation" and "deliberation," and thereby effectively eliminated from the jury's consideration the element of deliberation. Riley cites Polk v. Sandoval, 503 F.3d 903, 909 (9th Cir. 2007), as support for this contention.
In Polk, the Ninth Circuit Court of Appeals held that the Kazalyn instruction violated due process because it relieved the state of its burden to prove every element of the crime of first degree murder. Polk, 503 F.3d at 909. The court applied a harmless error analysis, wherein relief is warranted only if "the error had a substantial and injurious effect or influence in determining the jury's verdict," and ruled that the error in that case was not harmless. Id. at 911, citing Brecht v. Abrahamson, 507 U.S. 610, 637 (1993); see also Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008).
Following Polk and Chambers, this court concludes that the Kazalyn instruction given at Riley's trial was constitutionally impermissible. The court also finds, however, that the error was harmless.
Riley's defense did not focus on the question whether the killing of Bollin was willful, deliberate and premeditated. Rather, the defense attempted to show that Jackson, not Riley, shot Bollin, and the jury rejected that defense.
With regard to the question whether the shooting was willful, deliberate, and premeditated, the prosecution's evidence was extraordinarily strong. There was extensive evidence showing that, despite his drug use, Riley was able to act in a deliberate manner at the time of the shooting. See, e.g., Exhibit R16, pp. 228-43 (Gordon), pp. 256-63 (Henry), pp. 280-308 (Johnson); Exhibit R17, pp. 350-60 (Jackson). Moreover — and most directly — there was testimony showing beyond any doubt that Riley did in fact act willfully, deliberately, and with premeditation. Jackson testified that, before Riley shot Bollin, Riley asked Bollin if he was ready to die. Exhibit R17, p. 356. Johnson testified that, before the shotgun blast, she heard Bollin say: "If you are going to kill me, just kill me." Exhibit R16, p. 284, lines 7-8.
The court concludes, in light of the evidence at trial, that the Kazalyn instruction did not have a substantial and injurious effect or influence in determining the jury's verdict.
Riley also asserts, in Ground 8, that the trial court gave jury instructions that unconstitutionally allowed a presumption of malice aforethought. The jury instruction was as follows:
Express malice is that deliberate intention to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
Exhibit P268, Instruction No. 7.
Here again, however, the evidence of malice was overwhelming. Two witnesses heard Riley state that he intended to kill Bollin, just before the shot was fired. See Exhibit R17, p. 356 (Jackson); Exhibit R16, p. 284, lines 7-8 (Johnson). In light of that evidence, any error in the instruction regarding malice was harmless. It is inconceivable that the malice instruction had any effect or influence on the jury's verdict.
The court will, therefore, deny habeas corpus relief on Ground 8, and also on Grounds 1M and 1Q to the extent those claims are based on alleged failures of trial and appellant counsel with respect to these jury instructions.
Ground 9
In Ground 9, Riley claims that his federal constitutional rights were violated because "the trial court failed to instruct the jury on the requirement of accomplice corroboration." Second Amended Petition, p. 102, lines 2-4. In addition, Riley claims that his counsel were ineffective with respect to his handling of this matter. Id. at 104-05.
Riley raised, on the appeal from the denial of his first state petition, the claim that his trial counsel were ineffective for not requesting an accomplice instruction. Exhibit R94, p. 18; Exhibit R98, pp. 9-13. The Nevada Supreme Court affirmed the denial of relief on this claim, ruling as follows:
Riley next alleges that Johnson and Jackson were "clearly accomplices" of Riley, and that counsel's failure to request an "accomplice instruction" at the guilt phase of trial was ineffective assistance of counsel.
* * *
Dahl [Riley's trial counsel] testified at the evidentiary hearing that his only theory of the case was that Jackson, not Riley, shot Bollin. He further testified that asking for an accomplice instruction would have undermined this defense. In this case, the decision not to ask for an accomplice instruction reflects a reasonable tactical choice and such a valid tactical choice is entitled to deference. See United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (reviewing court not to second-guess legitimate tactical decisions, and counsel's conduct falling within wide range of reasonable professional conduct will not be deemed ineffective), cert. denied 474 U.S. 979 (1985). Accordingly, we conclude that this choice was within the range of reasonably effective assistance guaranteed Riley by the Nevada and United States Constitutions.
Moreover, an "accomplice instruction" advises the jury that it should view as suspect incriminating testimony given by those who are liable to prosecution for the identical charged offense as the accused. See Ramirez-Garza, 108 Nev. 376, 378, 832 P.2d 392, 392-93 (1992). In this case, the record is wholly devoid of evidence tending to support a theory of joint criminal liability and no evidence supports the conclusion that Jackson or Johnson was liable to prosecution for this offense. Thus, neither Johnson's nor Jackson's testimony was suspect, and, as a result, the factual predicates for invoking the accomplice instruction are absent.
Exhibit R102, pp. 17-18. As this claim of ineffective assistance of trial counsel was raised by Riley on the appeal of the denial of his first state petition, and ruled upon by the Nevada Supreme Court, this court considers that portion of Ground 9, and that portion of Ground 1M, under the standards imposed by AEDPA and set forth in 28 U.S.C. § 2254(d). The court concludes that the Nevada Supreme Court's denial of relief on that claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court.
The habeas petitioner claiming ineffective assistance of counsel "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. "[He] bears the heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy." Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001). "In determining whether the defendant received effective assistance of counsel, `we will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's sound trial strategy." Id. (quoting Strickland, 466 U.S. at 689). "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment." Strickland, 466 U.S. at 681. With these principles in mind, the court finds reasonable the Nevada Supreme Court's ruling that counsel was not ineffective in developing a trial strategy that involved attempting to shift the criminal responsibility for Bollin's murder to Jackson, a trial strategy that would have been contradicted by an accomplice instruction.
As for the remainder of Ground 9, and the Ground 1Q claim of ineffective assistance of appellate counsel with respect to the matter of the accomplice instruction, those claims were not presented in state court on Riley's direct appeal or in his first state petition. See Exhibits R50, R52, R70, R71, R94, R98. Those claims were asserted by Riley in his second state habeas petition. See Exhibit P2, pp. 86-87, 145-48. The state courts, however, did not resolve Riley's second state habeas petition on its merits; rather, the state courts dismissed that petition as procedurally defaulted. See Exhibits P4, P19. Therefore, this court conducts a de novo review of this part of Grounds 9 and 1Q, without applying the deferential standards of section 2254(d). See Pirtle, 313 F.3d at 1167.
The Nevada Supreme Court's ruling that the evidence in this case did not support an accomplice instruction is a ruling on a question of state law, beyond the purview of this court. See Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994) (federal courts must "accept a state court ruling on questions of state law"). Therefore, Riley had no state-law right to an accomplice instruction. Moreover, Riley has not pointed to any precedent suggesting that an accomplice instruction was mandated under the facts of this case as a matter of federal constitutional law. Riley's appellate counsel was not ineffective for failing to argue otherwise.
This court will, therefore, deny habeas corpus relief on Ground 9, and also on Grounds 1M and 1Q to the extent those claims are based on alleged failures of trial and appellant counsel with respect to the matter of an accomplice instruction.
Ground 10
In Ground 10, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, and a reliable sentence were violated because of "the trial court's failure to adequately instruct the jury regarding aggravating circumstances." Second Amended Petition, p. 106, lines 2-4. Specifically, Riley claims that his constitutional rights were violated because his four prior convictions were submitted to the jury as separate potential aggravating circumstances, despite the fact that two of them arguably arose from the same criminal transaction. See id.
Riley made this claim on his direct appeal. See Exhibit R50, pp. 77-79. The Nevada Supreme Court rejected Riley's position, holding that "if the defendant can be prosecuted for each crime separately, each can be used as an aggravating circumstance." Riley v. State, 107 Nev. 205, 216-17, 808 P.2d 551, 557-58 (1991) (citing Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990)).
Under Nevada law, it is an aggravating factor, supporting a death penalty, if a murder is committed by a person who has been convicted of a felony involving the use or threat of violence. NRS 200.033(2). Pursuant to that statutory provision, at the penalty phase of Riley's trial, the jury was instructed that Riley's first degree murder conviction could be aggravated by each of his four prior robbery convictions. See Exhibit P270, Instruction No. 14. Two of those four prior convictions arose from the same robbery — the robbery of a Reno grocery store, during which money was taken from both the store and its customers. See id.; see also Second Amended Petition, p. 106.
At the conclusion of the penalty phase of Riley's trial, the jury found that five aggravating factors had been established beyond a reasonable doubt: that the murder was committed while Riley was engaged in the commission of or an attempt to commit a robbery, and that Riley had been previously convicted of four crimes involving the use or threat of violence. See Exhibit P285. The jury found that no mitigating circumstance or circumstances outweighed the aggravating circumstances, and Riley was sentenced to death. See Exhibits P285, P286.
Riley asserts that "[w]hen multiple convictions arise from the same criminal transaction, the Constitution limits the State to one aggravating factor based on the group of convictions arising from that one transaction." Second Amended Petition, p. 106, lines 20-22. Riley does not, however, cite any authority for this proposition. See Second Amended Petition, pp. 106-07; see also Reply (no further argument regarding Ground 10). The court is not aware of any authority — much less any clearly established federal law, as determined by the Supreme Court of the United States — holding that multiple convictions arising from the same criminal transaction cannot constitutionally function as separate aggravating circumstances in support of a death penalty. The Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d).
Turning to the related claim of ineffective assistance of counsel in Ground 10, and also in Ground 1M, this claim was not raised in Riley's first state habeas petition. See Exhibits R70, R71, R94, R98. This claim was asserted by Riley in his second state habeas petition. See Exhibit P2, pp. 161-63. The state courts, however, did not resolve Riley's second state habeas petition on its merits; rather, the state courts dismissed that petition as procedurally defaulted. See Exhibits P4, P19. Therefore, this court conducts a de novo review of this claim of ineffective assistance of counsel, without applying the deferential standards of section 2254(d). See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Riley acknowledges that his trial counsel objected to Penalty-Phase Jury Instruction Number 14, the instruction regarding aggravating circumstances. See Second Amended Petition, p. 106, lines 8-9; see also Exhibit P284, p. 44. Riley does not explain what more trial counsel should have done with respect to this issue.
Furthermore, as is discussed above, the Nevada Supreme Court ruled — reasonably, in this court's view — that "if the defendant can be prosecuted for each crime separately, each can be used as an aggravating circumstance." Riley v. State, 107 Nev. 205, 216-17, 808 P.2d 551, 557-58 (1991). In light of that ruling by the Nevada Supreme Court, it is plain that Riley's trial counsel were not ineffective for taking no further action to oppose Penalty-Phase Jury Instruction Number 14, and Riley was not prejudiced by any shortcomings in his trial counsel's efforts with respect to that instruction.
In Ground 1Q, Riley claims that his appellate counsel was constitutionally ineffective for failing to raise on appeal the claims set forth in Ground 10. In fact, the substantive portion of Ground 10 — the claim that Riley's rights were violated because his four prior convictions were submitted to the jury as separate potential aggravating circumstances despite the fact that two of them arguably arose from the same criminal transaction — was raised on the direct appeal. See Exhibit R50, pp. 77-79. Moreover, the Nevada Supreme Court ruled against Riley on that claim; therefore, it is plain that Riley was not prejudiced by any failure of Riley's appellate counsel to present this claim, or the related claim of ineffective assistance of trial counsel, in some other context. See Riley v. State, 107 Nev. 205, 216-17, 808 P.2d 551, 557-58 (1991) (citing Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990)).
The court will deny habeas corpus relief with respect to Ground 10, and Grounds 1M and 1Q to the extent they assert ineffective assistance of counsel with respect to the claim raised in Ground 10.
Ground 11
In Ground 11, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, cross-examination and confrontation, and a reliable sentence were violated because of "the trial court's failure to properly instruct the jury that it need not agree unanimously on mitigating factors." Second Amended Petition, p. 108, lines 2-5.
Riley argues that he is entitled to relief based on the holdings in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), cases in which the Court found a constitutional violation arising from limitations placed on the jury's consideration of mitigating evidence. Compared to the jury instructions given in the penalty phase of Riley's trial, however, the jury instructions in Mills and McKoy created a far greater likelihood that the jury would be left with the misunderstanding that they were precluded from considering mitigating evidence unless they unanimously agreed upon the existence of the mitigating circumstance.
In Mills, a verdict form expressly indicated that the jury had to unanimously agree as to the existence of any mitigating circumstance. Mills, 486 U.S. at 378. The Mills jury was also instructed that only mitigating circumstances unanimously agreed upon could be weighed against aggravating factors in making the ultimate sentencing decision. Id. at 380. In McKoy, as well, the jury instructions were explicit in requiring unanimity for the finding of mitigating circumstances and in precluding the consideration of mitigating evidence in the absence of unanimity. McKoy, 494 U.S. at 436-37. In contrast, nowhere in the instructions or verdict forms given to the jury in Riley's case is there an explicit unanimity requirement with respect to mitigating circumstances.
Riley focuses on three jury instructions in Ground 11. Jury Instruction Number 5 was as follows:
During your deliberation, you will have all the exhibits which were admitted into evidence, those written instructions and forms of verdict which have been prepared for your convenience.
Your verdict must be unanimous. When you have agreed upon your verdicts, they should be signed and dated by your foreman.
Exhibit P270, Instruction No. 5. Jury Instruction Number 12 provided:
The State has alleged that aggravating circumstances are present in this case.
The defendant has alleged that certain mitigating circumstances are present in this case.
It shall be your duty to determine:
(a) Whether an aggravating circumstance or circumstances are found to exist; and
(b) Whether a mitigating circumstance or circumstances are found to exist; and
(c) Based upon these findings, whether the defendant should be sentenced to life imprisonment or death.
The jury may impose a sentence of death only if it finds an aggravating circumstance has been established beyond a reasonable doubt and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for life with or without the possibility of parole.Id., Instruction No. 12. And, Jury Instruction Number 17 provided:
The Court has submitted two sets of verdicts to you. One set of verdicts reflects the three possible punishments which may be imposed. The other verdict is a special verdict. They are to reflect your findings with respect to the presence or absence and weight to be given any aggravating circumstance and any mitigating circumstances.
It will be the jury's duty to select one appropriate and special verdict pertaining to the jury's findings with respect to aggravating and mitigating circumstances and then one appropriate verdict pertaining to the punishment which is to be imposed.Id., Instruction No. 17.
Of the three instructions placed at issue by Riley, only Instruction Number 5 referred to a requirement of unanimity. Instruction Number 5, however, explicitly related only to the verdict: "Your verdict must be unanimous." Exhibit P270, Exhibit 5 (emphasis added). The instruction did not state that determinations underlying the verdict had to be made unanimously. Instruction Number 5 did not preclude the jury from considering relevant evidence in deliberating in anticipation of the verdict. Instructions Number 12 and 17 did not mention any requirement of unanimity.
The Supreme Court recently addressed a similar issue in Smith v. Spisak, ___ U.S. ___, 130 S.Ct. 676 (2010). In Spisak, the Court considered jury instructions given in an Ohio murder case. As in this case, the jury instructions in Spisak stated that, to recommend the death penalty, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but the instructions did not speak to whether or not the mitigating circumstances had to be found unanimously. See Spisak, 130 S.Ct. at 684. The Court in Spisak held that "the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, . . . `a substantial possibility that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.'" Spisak, 130 S.Ct. at 684 (quoting Mills, 486 U.S. at 384). As in Spisak, there is no reasonable probability that the jury in this case believed it was limited by the court's instructions to considering only mitigating circumstances found unanimously.
Riley also claims in Ground 11, and in Ground 1M, that his trial counsel were ineffective for failing to request jury instructions informing the jury that mitigating circumstances need not be found unanimously. See Second Amended Petition, p. 109, lines 19-24. However, in view of this court's conclusion that there is not a reasonable probability that the jury was misled by the instructions as given, the court cannot say that trial counsel performed unreasonably in this respect, or that there is a reasonable probability that, but for the challenged conduct of counsel, the result of the proceeding in question would have been different.
In Ground 1Q, Riley claims that his appellate counsel was constitutionally ineffective for failing to raise on appeal the claim set forth in Ground 11. However, because the court finds the primary claim in Ground 11 to be without merit, the related claim of ineffective assistance of appellate counsel is also without merit. Riley's appellate counsel was under no duty to assert a meritless claim. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues."); Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997) ("A hall mark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court."); see also Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984) ("It was not ineffective assistance of counsel to refrain from appealing a correct ruling.").
The court will deny habeas corpus relief with respect to Ground 11, and Grounds 1M and 1Q, to the extent they assert ineffective assistance of counsel with respect to the issues raised in Ground 11.
Ground 12
In Ground 12, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, cross-examination and confrontation, and a reliable sentence were violated because of "the trial court's failure to instruct . . . the jury that it had to agree unanimously upon aggravating circumstances." Second Amended Petition, p. 110, lines 2-5.
The court finds this claim to be without merit, as it is clear, in light of a special verdict returned by the jury, that the jury unanimously found five aggravating circumstances to be established beyond a reasonable doubt. The special verdict stated:
We, the Jury in the above entitled case, having found the defendant, BILLY RAY RILEY, GUILTY of Count II — MURDER OF THE FIRST DEGREE WITH USE OF A DEADLY WEAPON, designate that the aggravating circumstance or circumstances which have been checked below have been established beyond a reasonable doubt.
Exhibit R32. The jury went on to place checkmarks by five aggravating circumstances. Id. This special verdict shows, beyond any reasonable argument, that the jury unanimously found the aggravating circumstances. There is no reasonable probability that the jury was misinformed about the unanimity requirement regarding aggravating circumstances.
Furthermore, because this claim is meritless, the court finds Riley's related claims of ineffective assistance of trial and appellate counsel, in Grounds 1M and 1Q, to be without merit. There is no reasonable probability that, but for the alleged shortcomings of counsel with regard to these issues, Riley's sentence would have been different.
The court will, therefore, deny habeas corpus relief with respect to Ground 12, and Grounds 1M and 1Q, to the extent they assert ineffective assistance of counsel with respect to the issues raised in Ground 12.
Ground 13
In Ground 13, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, cross-examination and confrontation, and a reliable sentence were violated because of "the trial court's failure to properly instruct the jury that they need not find mitigating factors to impose a sentence less than death." Second Amended Petition, p. Ill, lines 2-5.
At the close of the penalty phase of Riley's trial, he requested the following jury instruction, which was designated Proposed Instruction Number D-1:
You are instructed that it is not necessary for the defendant to present any mitigating circumstances. Even if the State establishes one or more aggravating circumstances beyond a reasonable doubt and the defendant presents no evidence in mitigation you should not automatically sentence the defendant to death. The law never specifies that a sentence of death is appropriate; the jury however may consider the option of sentencing the defendant to death where the State has established beyond a reasonable doubt that an aggravating circumstance or circumstances exists and the mitigating evidence is not sufficient to outweight [sic] the aggravating circumstance.
Exhibit P271. The trial court declined to give this instruction, apparently ruling that the substance of the proposed instruction was adequately covered by an instruction given elsewhere — Instruction Number 12. Id.
As part of Instruction Number 12 (which is quoted in full, above, in the discussion of Ground 11), the trial court gave the jury the following instruction:
The jury may impose a sentence of death only if it finds an aggravating circumstance has been established beyond a reasonable doubt and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for life with or without the possibility of parole.
Exhibit P270, Instruction No. 12.
Riley argues that the instructions given to the jury failed to inform the jury of their discretion to impose a life sentence, rather than a sentence of death, under any and all circumstances, that "[i]t is reasonably likely that a juror would have understood the instructions as requiring the jury to impose a death sentence whenever the aggravating circumstances outweighed the mitigating circumstances," and that "[i]t is also reasonably likely that jurors would have been led to believe they were required to impose a death sentence unless they could articulate a mitigating circumstance or other reason why the death penalty should not be imposed." Second Amended Petition, p. 112, lines 5-11.
The court disagrees. There was nothing in the instructions, as given, suggesting that, under any circumstances, a death penalty was mandatory. See Exhibit P270. Rather, Instruction Number 12 plainly set forth the circumstances under which the jury "may" impose a sentence of death. See id., Instruction No. 12. The instruction went on to state that, "otherwise," the punishment was to be life in prison with or without the possibility of parole. See id.
This court concludes that the jury likely read Instruction Number 12 giving the words their common meanings. There is no reasonable likelihood that the jury understood themselves to be bound to impose the death sentence unless there were mitigating circumstances outweighing the aggravating circumstances. See Boyde v. California, 494 U.S. 370, 380 (1990).
Regarding the claim of ineffective assistance of counsel in Ground 13, Riley does not explain how he believes his counsel's performance was unreasonable. See Second Amended Petition, pp. 111-12; Reply, pp. 14-15. Moreover, as the court concludes that there was no reasonable likelihood that the jury was misled, there was no prejudice to Riley stemming from his counsel's handling of Proposed Instruction Number D-1.
The court will deny habeas corpus relief with respect to Ground 13.
Ground 14
In Ground 14, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, trial before an impartial jury, cross-examination and confrontation, and a reliable sentence were violated because his trial counsel did not request, and the trial court did not give, in either the guilt or penalty phase of his trial, jury instructions regarding voluntary intoxication. Second Amended Petition, pp. 113-16.
Riley does not provide the text of the instructions that he argues the trial court should have given. His claim is, therefore, vague and uncertain.
Moreover, Riley does not cite any precedent for the proposition that the failure to instruct the jury specifically on the concept of voluntary intoxication could have violated his constitutional rights to due process of law, equal protection of the laws, trial before an impartial jury, cross-examination and confrontation, and a reliable sentence. See Second Amended Petition., pp. 113-16; Reply (no further argument regarding Ground 14).
At any rate, even if there was error, in either counsel's failure to request voluntary intoxication instructions or the court's failure to give such instructions, the court finds that there was no prejudice to Riley.
In the guilt phase of Riley's trial, the jury was instructed as follows regarding the intent to kill:
The intention to kill may be ascertained or deduced from the facts and circumstances of the killing, such as the use of a weapon calculated to produce death, the manner of its use, and the attendant circumstances characterizing the act.
Exhibit P268, Instruction No. 12 (emphasis added). This instruction did not in any manner prevent the jury from considering the evidence that Riley was intoxicated, with respect to the question of his intent to kill. On the contrary, this instruction suggested that any "attendant circumstances" could be considered.
Furthermore, as has been discussed above, there was ample evidence showing that, despite his drug use, Riley was quite able to act in a deliberate manner at the time of the shooting. See, e.g., Exhibit R16, pp. 228-43 (Gordon), pp. 256-63 (Henry), pp. 280-308 (Johnson); Exhibit R17, pp. 350-60 (Jackson). And, again, there was testimony indicating, in an unusually direct manner, that Riley did have the requisite mental state for first degree murder. Exhibit R17, p. 356 (Jackson); Exhibit R16, p. 284 (Johnson). In light of this evidence, the court concludes that there is no possibility that the outcome of the guilt phase of the trial would have been different had counsel requested, and the trial court given, jury instructions on voluntary intoxication.
In the penalty phase, the trial court gave the jury instructions that indicated clearly that any circumstance could be a mitigating circumstance, and that it was up to the jury to determine what was a mitigating circumstance. Exhibit P270, Instructions Number 12 and 15. In fact, Riley's counsel argued that Riley's drug use should be taken into account to mitigate his sentence. See Exhibit P284, pp. 68-73. Therefore, in the penalty phase as well, the court finds that Riley was not prejudiced by the lack of jury instructions regarding voluntary intoxication.
The court will deny habeas corpus relief with respect to Ground 14, and Grounds 1M and 1Q to the extent they assert ineffective assistance of counsel with respect to the issues raised in Ground 14.
Ground 15
In Ground 15, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, trial before an impartial jury, and a reliable sentence were violated because of "the trial court's failure to properly instruct the jury concerning reasonable doubt." Second Amended Petition, p. 117, lines 2-5.
The jury instruction challenged here, given in both the guilt and penalty phases of the trial, was as follows:
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and substantial, not merely possibility or speculation.
Exhibit P268, Instruction No. 19; see also Exhibit P270, Instruction No. 13. Riley argues that this instruction unconstitutionally reduced the prosecution's burden of proof, by misstating the concept of "reasonable doubt." See Second Amended Petition, pp. 117-18. Riley cites Cage v. Louisiana, 498 U.S. 39 (1990) and Victor v. Nebraska, 511 U.S. 1 (1994).
The Ninth Circuit Court of Appeals has rejected this argument, regarding precisely the same jury instruction, in Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir.), cert. denied, 525 U.S. 967 (1998), and Nevius v. McDaniel, 218 F.3d 940 (9th Cir. 2000). Based on the authority of Ramirez and Nevius, the court will deny habeas corpus relief with respect to Ground 15, as well as Grounds 1M and 1Q to the extent they assert ineffective assistance of counsel with respect to the issues raised in Ground 15.
Riley acknowledges the holdings in Ramirez and Nevius. See Reply, p. 16. Riley argues, however, that these decisions "are simply wrong," and he states that he "raises this claim in order to preserve the potential of review and reversal of these erroneous decisions." Id.
Ground 16
In Ground 16, Riley claims that his federal constitutional rights to due process of law, equal protection of the laws, trial before an impartial jury, and a reliable sentence were violated "because the `equal and exact justice' instruction given during trial improperly minimized the State's burden of proof." Second Amended Petition, p. 119, lines 2-4. Riley also claims that his counsel were ineffective for not objecting to that instruction. Id at 120.
The jury instruction placed at issue in this claim is the following:
Now you will listen to the arguments of counsel who will endeavor to aid you to reach a proper verdict by refreshing in your minds the evidence and by showing the application thereof to the law; but, whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberation by the evidence as you understand it and remember it to be and by the law as given you in these instructions, with the sole, fixed and steadfast purpose of doing equal and exact justice between the defendant and the State of Nevada.
Exhibit P268, Instruction No. 28. Riley asserts that this instruction created a reasonable likelihood that the jury would not afford him the required presumption of innocence. Second Amended Petition, pp. 119-20.
The court finds no merit in Riley's position. Reading all the jury instructions as a whole, it is plain that the use of the phrase "equal and exact justice" did not unconstitutionally alter the jury's understanding of the burden of proof, and, in particular, the presumption of innocence, which was clearly explained elsewhere. See Exhibit P268, Instruction No. 19 ("The defendant is presumed innocent until the contrary is proved."). The court finds there to be no likelihood that the jury was misled by the phrase "equal and exact justice" in Instruction Number 28.
The court will deny habeas corpus relief with respect to Ground 16, as well as Grounds 1M and 1Q to the extent they assert ineffective assistance of counsel with respect to the issues raised in Ground 16.
Ground 17
In Ground 17, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, and a reliable sentence were violated "due to the trial court's erroneous instruction to the jury that it could not consider sympathy." Second Amended Petition, p. 121, lines 2-4.
Riley mentions that the instruction was given in both the guilt and penalty phases of his trial, but Riley's argument focuses on the impact of the instruction in the penalty phase. See Second Amended Petition, pp. 121-22. This claim was raised in the same manner in state court, on Riley's direct appeal. See Exhibit R50, pp. 69-77. In state court, as well, Riley only challenged the instruction as given in the penalty phase. See id. at 69. This court, therefore, reads Ground 17 to challenge the no-sympathy instruction only as given in the penalty phase of Riley's trial.
The Nevada Supreme Court rejected Riley's position, holding as follows:
2. Penalty Phase Jury Instruction No. 24. Next Riley argues the district court erred when it gave Jury Instruction No. 24, which informed the jury that "[a] verdict may never be influenced by sympathy. . . ." Specifically, Riley argues this instruction violated his Eighth Amendment rights because it undermined the jury's consideration of mitigating evidence. We disagree.
This court has previously ruled that it is not error to instruct the jury not to be influenced by sympathy if the court also instructs the jury to consider mitigating circumstances. Hogan v. State, 103 Nev. 21, 732 P.2d 422 (1987), cert. denied 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed. 153 (1987). See also Biondi v. State, 101 Nev. 252 699 P.2d 1062 (1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). Since the jury in this case was directed to consider mitigating circumstances in deciding the appropriate penalty, the district court did not err when it gave Jury Instruction No. 24 at the conclusion of the penalty phase proceedings.Riley v. State, 107 Nev. 205, 215-16, 808 P.2d 551, 552-54 (1991) (footnote omitted).
As the claim in Ground 17 was presented to, and ruled upon by, the Nevada Supreme Court, this court applies the standards imposed by the AEDPA. Riley has made no showing that the Nevada Supreme Court's ruling was contrary to, or an unreasonable application of, any Supreme Court precedent. Riley cites no Supreme Court case in support of this claim. See Second Amended Petition, pp. 121-22. After the respondents argued, in their answer, that Riley had not made the required showing under 28 U.S.C. § 2254(d) (see Answer, pp. 94-95), Riley did not further address Ground 17 at all in his reply. See Reply.
The court will, therefore, deny habeas corpus relief on Ground 17. In addition, the court will deny habeas corpus relief on Ground 1Q, to the extent it asserts ineffective assistance of appellate counsel for failure to raise the claim stated in Ground 17; Riley's appellate counsel did, in fact, raise this claim on Riley's direct appeal. See Exhibit R50, pp. 69-77.
Ground 18
In Ground 18, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, a fair tribunal, and a reliable sentence were violated "due to the trial court's inquiry as to the jury's numerical division." Second Amended Petition, p. 123 lines 2-4.
In the penalty phase of Riley's trial, the jury began its deliberations on Monday, January 29, 1990. See Exhibit R27. After deliberating for about seven and a half hours, on Tuesday, January 30, 1990, just before noon, the jury reported that it had not reached a verdict. See Exhibit R30, p. 87. The trial judge questioned the foreman of the jury, as follows:
THE COURT: You have been chosen foreman of this jury. Is that correct?
[JURY FOREMAN]: Yes, sir.
THE COURT: Has the jury reached a verdict in this case as far as the penalty hearing is concerned. . . .?
[JURY FOREMAN]: No, it has not.
THE COURT: Will you please stand.
[JURY FOREMAN]: Yes, sir.
THE COURT: Without telling me the vote, has a vote been taken as to the penalty?
[JURY FOREMAN]: Yes, sir.
THE COURT: And what was that vote, without telling me which way it was?
[JURY FOREMAN]: Eleven to one, sir.
THE COURT: And . . . in your opinion as foreman of this jury how long has that vote been eleven to one?
[JURY FOREMAN]: Since yesterday. Well, this morning I will say.
THE COURT: This morning?
[JURY FOREMAN]: Yes.
THE COURT: Maybe three hours ago?
[JURY FOREMAN]: Yes, sir.
THE COURT: And in your opinion as foreman of this jury do you think the jury can reach a verdict in this case as far as the penalty is concerned?
[JURY FOREMAN]: Yes, sir, I do.
THE COURT: You think you can reach a verdict?
[JURY FOREMAN]: Yes, sir.
THE COURT: Are you requesting that we give you additional time?
[JURY FOREMAN]: Yes, sir, I am.
THE COURT: Mr. Bailiff, I thought you informed the Court that we were deadlocked.
THE BAILIFF: The last words I had with him, sir, that is true.
THE COURT: But, I don't want to know which way it is going. I have no right to know that.
[JURY FOREMAN]: Yes, sir.
THE COURT: But in your opinion as of this time do you feel that if you retire for further deliberation that a verdict can be reached as far as the penalty is concerned?
[JURY FOREMAN]: Yes, sir, I do.
THE COURT: All right. Then let me tell you this: I am going to excuse you and let you go back to your deliberation. Do you think we ought to take them to lunch first or — I will leave it up to you, whatever you and the foreman decide.
[JURY FOREMAN]: Just as soon go back and deliberate without the lunch.
THE COURT: Okay. Then Mr. Bailiff, you will take the jury back to the deliberating room. We will see what happens.
We will be in recess.
Exhibit R30, pp. 87-89. About 45 minutes later, at 12:30 p.m., the jury returned with its verdict, recommending the death penalty. Id. at 89-92.
Riley asserts that the trial judge's inquiry into the numerical division among the jurors improperly coerced the one holdout juror to vote for the death penalty, and thereby rendered Riley's sentence fundamentally unfair and unconstitutional. Second Amended Petition, p. 124. However, Riley cites no authority for the proposition that the judge's inquiry into the numerical division among the jurors violated his federal constitutional rights. See Second Amended Petition, pp. 64-65; see also Reply (no mention of this claim in the reply).
There is no per se rule rooted in the United States Constitution requiring reversal of a conviction where a trial court polled a jury during deliberations. The Supreme Court, in Brasfield v. United States, 272 U.S. 448 (1926), banned the practice of polling juries in federal court. See Brasfield, 272 U.S. at 450. The Court did so, however, pursuant to its supervisory authority over the federal judiciary, and not as a constitutional imperative. Lowenfield v. Phelps, 484 U.S. 231, 239-40 (1988); Locks v. Sumner 703 F2d 404, 406 (9th Cir. 1983). The practice is generally permissible in state court proceedings. See Lowenfield, 484 U.S. at 239-40; see also White v. State, 95 Nev. 881, 603 P.2d 1063 (1979) (recognizing that the Brasfield holding was not constitutionally mandated, and rejecting the Brasfield rule of automatic reversal).
In Lowenfield, the Supreme Court heard an appeal from the denial of a habeas petition brought by a state prisoner. Lowenfield. 484 U.S. at 231. The appellant argued that the state trial court denied him a fair trial when it twice polled deadlocked jurors as to whether further deliberations might result in a verdict, and instructed them to continue their deliberations. Id. at 234-41. The Supreme Court noted generally that jury polling is fraught with "potential dangers" and is "generally coercive." Id. at 239-40. Nevertheless, having considered the challenged conduct "in its context and under all the circumstances," the Court upheld the conviction. Id. at 237-41. The Court emphasized that the trial court polled the jurors to determine "how they stood on the question of whether further deliberations might assist them in returning a verdict[,]" rather than "how they stood on the merits of the verdict. . . ." Id. at 240. Further, the Court noted that although the defense attorney moved for a mistrial when it appeared that the jury was deadlocked, he did not object to the trial court polling the jury. Id. The failure to object indicated that there was no coercion evident to those present at the trial. Id.
In this case, the trial court said nothing to the jury foreman to indicate that it was important to the court for the jury to reach a verdict. Furthermore, the trial court twice told the foreman not to reveal which way the jury was leaning, indicating that the court was not interested in seeing the jury render any particular verdict; this was consistent with the Supreme Court's approval of the polling of jurors to determine "how they stood on the question of whether further deliberations might assist them in returning a verdict[,]" rather than "how they stood on the merits of the verdict. . . ." Lowenfield, 484 U.S. at 240. The trial court did not order the jury to return and deliberate further. Rather, the trial court asked the foreman if he thought the jury could reach a verdict, and he asked the foreman whether he requested more time for the jury to deliberate. When the foreman said he wished to deliberate further, the court granted his request. Moreover, as in Lowenfield, there was no objection, indicating that no coercion was evident to those present at the trial. See id.
Taking into consideration all the circumstances, this court concludes that the trial court's polling of the jury was not coercive, and Riley's federal constitutional rights were not violated. Riley's trial counsel were not ineffective for failing to object. See discussion concerning Ground 10, supra. Nor was Riley's appellate counsel ineffective for failing to raise this claim on Riley's direct appeal. The court will, therefore, deny habeas corpus relief with respect to Ground 18, as well as Ground 1Q to the extent it asserts ineffective assistance of appellate counsel with respect to the issues raised in Ground 18.
Ground 19
In Ground 19, Riley claims that his federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the laws, cross-examination and confrontation, and a reliable sentence were violated "due to the introduction of the battery-with-use charge as `character' evidence during the penalty phase." Second Amended Petition, p. 125, lines 2-5.
In the penalty phase of Riley's trial, the prosecution introduced testimony of North Las Vegas Police Officer Orville Risenhoover, regarding a prior criminal act committed by Riley. Exhibit R27, pp. 24-29. Risenhoover testified that on June 17, 1989, he was dispatched to a residence in North Las Vegas, where he found a young woman receiving first aid treatment. Id. at 25-26. Risenhoover testified that the woman told him that Riley had beaten her with a chain link fence post. Id. at 26. Risenhoover testified that Riley's mother was at the scene, and told him that she had called the police, showed him the fence post, and told him that Riley had gone to a nearby park. Id. at 26-27. Risenhoover testified that he then went to the park and located Riley. Id. at 27. Risenhoover testified that, after he advised Riley of his Miranda rights, Riley said that "he had hit [the woman] with a fence post in the arms area but not the head." Id. at 28.
Riley asserts that Risenhoover's testimony should not have been admitted. Second Amended Petition, pp. 125-27. Riley also claims that his counsel were ineffective for not adequately investigating the circumstances of the alleged battery, and for not presenting mitigating evidence regarding it. Id. at 127. In support of his claims, Riley submits statements of several alleged witnesses to the June 17, 1989 incident, along with a statement of the alleged victim. See Exhibits P252, P253, P254, P255, P256, P257, P258, and P272.
Riley cites no authority holding that the federal constitutional right to confront witnesses applies at a capital sentencing hearing. On the other hand, there is authority holding that the Confrontation Clause does not apply at a capital sentencing hearing. See Ortiz v. Stewart, 149 F.3d 923, 937 (9th Cir. 1999); Creech v. Arave, 947 F.2d 873, 880-81 (9th Cir. 1991), overruled in part on other grounds by Arave v. Creech, 507 U.S. 463 (1993); see also United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003), cert. denied, 543 U.S. 999 (2004); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002); Bassette v. Thompson, 915 F.2d 932, 939 (4th Cir. 1990).
As for Riley's claim that his counsel were ineffective for not adequately investigating this matter, and for not presenting the testimony of the witnesses he now identifies, the court concludes that there is no reasonable probability that testimony of the sort suggested by Riley would have changed the outcome of the penalty hearing.
Riley's claim is based largely on the written statements of alleged witnesses to the June 17, 1989 incident. See Exhibits P252 — P258. Those statements essentially claim that the victim first attacked Riley with an iron rod of some sort, and that Riley acted in self-defense. See id. That, however, stands in contrast to Riley's own statement to Officer Risenhoover. See Exhibit R27, p. 28. Furthermore, in the Nevada Supreme Court's order dismissing the appeal from the convictions in the battery case, there is no mention at all of any claim of self-defense. See Exhibit R108. And, later, in the order of the Nevada Supreme Court dismissing the appeal from the denial of post-conviction relief relative to the battery case, the Nevada Supreme Court said, regarding the statements of witnesses claiming Riley acted in self-defense:
Nevertheless, the record on appeal reveals that appellant admitted at trial that he assaulted the victim in this case. Thus, because appellant's allegations were repelled by the record on appeal, he was not entitled to an evidentiary hearing.
Exhibit R109. In short, every indication is that the claim of self-defense was minted long after the June 17, 1989 incident, and long after Riley's convictions stemming from that incident.
Moreover, the affidavit of the victim of the battery, states that she was attacked at a convenience store, and hit in the back of the head with a metal object, by a man she did not know. Exhibit P272. Her description of the incident is strikingly inconsistent with the description of the incident given by the other purported witnesses. Compare Exhibit P272 and Exhibits P252-P258.
In light of the inconsistencies among the statements of Riley, the victim, and the witnesses, regarding the June 17, 1989 incident, and keeping in mind the relative insignificance of that incident in comparison to the murder for which Riley was sentenced to death, this court concludes that there is no reasonable possibility that, had counsel brought in such witnesses to testify at the penalty phase of Riley's capital trial, the result of that proceeding would have been different. The court will deny habeas corpus relief with respect to Ground 19, as well as Ground 1Q to the extent it asserts ineffective assistance of appellate counsel with respect to the issues raised in Ground 19.
Ground 20
In Ground 20, Riley claims that his rights to a fair and reliable trial, under the Eighth and Fourteenth Amendments, were violated because of the State's presentation of improper evidence and argument. Second Amended Petition, pp. 128-130. Riley claims that the prosecution improperly denigrated defense counsel. Id. at 128-29. Riley also claims that the prosecution improperly denigrated him. Id. at 129-30. In addition, Riley claims that his trial counsel were ineffective for failing to object to the improper evidence and argument. Id. at 131.
Riley complains of the following statements made by the prosecution in closing argument at the guilt phase of the trial:
Ladies and Gentlemen, that drawing that counsel did with all the measurements and the angle and everything, are you wondering what, to yourself, why, you know, some witness like his investigator or some expert witness even Dr. Green on cross-examination wasn't asked to draw that in front of you? Well, a witness can be cross-examined. A defense attorney who is making stuff up in closing argument can make up anything he wants to. That's what we have here.
Exhibit P281, p. 449
Your memories control. My memory is that I had Dr. Green on the stand and I asked him some questions like what were your significant exterior findings and I let him run and what are your significant interior findings and I let him run.
On cross-examination he got led. That's fine. Everyone leads on cross. Those are the rules. But he got led. And what Mr. Dahl did was pick out two or three things he said out of context, not —Id. at 452.
With regard to the prosecution's argument at the penalty phase of the trial, Riley complains of the following:
By inference you have all been threatened with your immortal soul if you find the death penalty. You have been asked to consider how you feel when you were judged and would like your excuses ignored.
Are any of you murderers? Have any of you five times stuck a gun in someone's face and asked for their property? Have any of you beaten someone with a fence post? Have any of you been five times convicted of a felony? No, of course not. Does that argument apply to the decision you are to make? No.
Exhibit P284, p. 77.
But, for that I would say to you that you should remember the Old Testament: An eye for an eye, tooth for tooth.Id. at 77-78.
Twenty-two years of the same conduct. There is a pattern. Use your common sense. This man is a robber. He's a killing machine.Id. at 81.
On his direct appeal, Riley presented his claims regarding the prosecution's guilt-phase arguments. See Exhibit R50, pp. 56-64. And, on the direct appeal, Riley also presented his claim regarding the "killing-machine" argument at the penalty phase of the trial. Id. at 82-83.
The Nevada Supreme Court suggested that the prosecutor's remarks in the guilt phase were improper, but the court ruled that any such error was harmless in light of the "overwhelming evidence in the record to support the jury's verdicts in this case." Riley v. State, 107 Nev. 205, 213, 808 P.2d 551, 556 (1991). Similarly, the Nevada Supreme Court suggested that the "killing-machine" comment was improper, but not so inflammatory as to warrant reversal. Riley, 107 Nev. at 218, 808 P.2d at 559. This court concurs with those rulings. Given the weight of the evidence against Riley, and the isolated and relatively benign nature of the comments at issue, this court, too, finds that the comments did not render Riley's trial unfair. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Nevada Supreme Court's denial of relief on these claims was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence presented.
As to the remainder of Riley's claims in Ground 20, this court conducts a de novo review, without applying the deferential standards imposed by section 2254(d). See Pirtle, 313 F.3d at 1167.
The court finds that the other arguments of the prosecutor in the penalty phase, complained of here by Riley, were isolated, and were nowhere near egregious enough to infect Riley's trial with unfairness. See Darden, 477 U.S. at 181.
As for the claims that Riley's counsel were ineffective for not objecting to the prosecutor's arguments, and for not raising these issues on appeal, the court finds that, considering the nature of the remarks, the suggested objections and appellate issues would have been relatively weak. Counsel did not act unreasonably in forgoing such objections and appellate arguments. And, Riley was not prejudiced by counsel's decision not to pursue these issues.
The court will deny habeas corpus relief with respect to Ground 20, and Grounds 1L and 1Q to the extent they claim ineffective assistance of counsel with respect to the issues raised in Ground 20.
Ground 21
In Ground 21, Riley claims that his "conviction and sentence are invalid under the constitutional guarantees of due process of law, equal protection of the laws, the right to be informed of the nature and cause of a criminal accusation, and a reliable sentence because the indictment in this case was insufficient to charge Mr. Riley with first-degree murder and insufficient to support a sentence of death." Second Amended Petition, p. 132, lines 2-5. Specifically, Riley asserts that "[t]he indictment in this case was insufficient to support a conviction for first-degree murder and a sentence of death because it failed to allege all the elements of first-degree murder, failed to allege that the State intended to seek death, and failed to allege the aggravating circumstances the State intended to submit at sentencing." Id. at 132, lines 21-25.
Under the Sixth Amendment, an accused has the right to be informed of the nature and cause of the accusation against him. Under this constitutional provision, an indictment is adequate if it: (1) contains the elements of the charged offense; (2) gives the defendant adequate notice of the charges; and (3) protects the defendant against double jeopardy. Russell v. United States, 369 U.S. 749, 763-64 (1962); Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985). The Supreme Court long ago observed: "The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded." Hagner v. U.S., 285 U.S. 427, 431 (1932).
While an indictment must set forth the elements of the offense charged, an indictment should be: "(1) read as a whole; (2) read to include facts which are necessarily implied; and (3) construed according to common sense." United States v. Buckley, 689 F.2d 893, 899 (9th Cir. 1982), cert. denied, 460 U.S. 1086 (1983). The question is whether or not the indictment alleges the elements of the crime in adequate detail to fairly inform the defendant of the charge. Id. at 896-97.
The court finds that the indictment in Riley's case adequately set forth the elements of first degree murder, adequately notified Riley that he was charged with that offense, and adequately protected him against double jeopardy.
The indictment against Riley stated:
The Defendant above named, BILLY RAY RILEY, accused by the Clark County Grand Jury of the crimes of ROBBERY WITH USE OF A DEADLY WEAPON (Felony — NRS 200.380, 193.165) and MURDER WITH USE OF A DEADLY WEAPON (Felony — NRS 200.010, 200.030, 193.165) committed at and within the County of Clark, State of Nevada, on or about the 1st day of October, 1989, as follows:
COUNT I — Robbery With Use of a Deadly Weapon
did then and there, wilfully, unlawfully, and feloniously take personal property, to-wit: lawful money of the United States and narcotics, from the person of ALBERT BOLLIN, or in his presence, by means of force or violence, or fear of injury to, and without the consent and against the will of the said ALBERT BOLLIN, said Defendant using a deadly weapon, to-wit: a shotgun, during the commission of said crime.
COUNT II — Murder With Use of a Deadly Weapon
did then and there, without authority of law and with malice aforethought, wilfully and feloniously kill ALBERT BOLLIN, a human being, by shooting at and into the body of said ALBERT BOLLIN with a firearm, said Defendant using a deadly weapon, to-wit: a shotgun, during the commission of said crime.
Exhibit R5.
Nearly the same language in an indictment was challenged in the case of Nevius v. Sumner, 852 F.2d 463 (9th Cir. 1988), cert. denied, 527 U.S. 1006 (1999). In that case, the court of appeals ruled as follows:
Nevius finally claims that the indictment brought against him was improper because it did not allege premeditation as an essential element of the murder charge. Nevius argues that absent the premeditation element, the indictment charged only second degree murder, while he was forced to defend against, and was ultimately convicted of, first degree murder.
* * *
The indictment charged Nevius and his co-defendants with felony murder, burglary, robbery and sexual assault, all with a deadly weapon. The indictment also included the applicable sections of Nevada law. It is well-established law in Nevada that "the words `wilful' and `premeditated' are not so remote in essential meaning that the use of one without the other would leave a defendant unapprised of the charge against him, or render him unable to prepare a defense thereto." Langley v. State, 84 Nev. 295, 439 P.2d 986, 988 (1968). In the context of Nevius' entire indictment, we agree. We conclude that the indictment fairly notified Nevius of the offenses charged against him.Nevius, 852 F.2d at 471. This court follows the holding of the court of appeals in Nevius, and concludes that the indictment adequately charged Riley with first degree murder. See NRS 200.030 (defining degrees of murder).
Riley has cited no authority holding that the federal constitution requires that an indictment must notify the defendant that he faces the death penalty, or that the indictment must set forth the aggravating circumstances upon which the death penalty would be based. Rather, it appears that the constitutional notice requirement relates to the crime charged, not to the range of possible punishments.
Furthermore, the Ninth Circuit Court of Appeals has held that, in certain circumstances, a reviewing court may look to sources other than the indictment for evidence that the defendant received adequate notice; such other sources of notice may be found in "a complaint, an arrest warrant, or a bill of particulars," or "during the course of a preliminary hearing." Sheppard v. Rees, 909 F.2d 1234, 1236 n. 2 (9th Cir. 1990). In this case, on January 17, 1990, the State served on Riley's counsel a Notice of Intent to Seek Death Penalty, informing Riley that the prosecution would seek the death penalty, and informing him of the aggravating circumstances that were alleged. Exhibit R12. Almost six weeks before that, at a hearing on December 5, 1989, Riley's counsel acknowledged, in Riley's presence, that he knew the prosecution intended to seek the death penalty. See Exhibit 9, pp. 2-4. Riley has not demonstrated, with any specificity, that any defect in the indictment, or in the adequacy of the notice given him regarding the State seeking the death penalty, worked to his actual disadvantage.
The court will deny habeas corpus relief with respect to Ground 21, and Ground 1Q to the extent it asserts ineffective assistance of appellate counsel with respect to these issues.
Ground 22
In Ground 22, Riley claims that his "death sentence is invalid under the federal constitutional guarantees of due process, equal protection, and a reliable sentence because the Nevada capital punishment system operates in an arbitrary and capricious manner." Second Amended Petition, p. 135, lines 2-4. Riley argues that Nevada's statutory scheme does not adequately narrow the class of persons eligible for the death penalty. Id. at 135-37.
Riley's claim is presented in a generic manner, and he has not demonstrated that his constitutional rights were actually violated as a result of the Nevada statutory death penalty system.
Riley has not cited any authority holding that death penalty statutes such as Nevada's are unconstitutional. See Second Amended Petition, pp. 135-37. On the contrary, the Supreme Court has upheld death penalty statutes that, like Nevada's, set forth several aggravating circumstances that may render murder a capital offense. See Pulley v. Harris, 465 U.S. 37 (1984); Zant v. Stephens, 462 U.S. 862 (1983); Proffitt v. Florida, 428 U.S. 242 (1976).
In this case, the jury found five aggravating circumstances: the murder was committed in the course of the commission of, or an attempt to commit, a robbery; the murder was committed by a person previously convicted of a violent crime (robbery); the murder was committed by a person previously convicted of a second violent crime (a second robbery); the murder was committed by a person previously convicted of a third violent crime (armed robbery); the murder was committed by a person previously convicted of a fourth violent crime (a third robbery). Exhibit R32. Riley has not shown any of these aggravating circumstances to be invalid, and he does not make any serious argument that the finding of these aggravating circumstances in this case did not properly place him in a narrowed class of murderers to which the death penalty could constitutionally apply.
The court will deny habeas corpus relief with respect to Ground 22.
Ground 23
In Ground 23, Riley claims that his "conviction and death sentence are invalid under the federal constitutional guarantees of due process of law, equal protection of the laws, and a reliable sentence due to the failure of the Nevada Supreme Court to conduct fair and adequate appellate review." Second Amended Petition, p. 138, lines 2-4. Much of what is alleged in this wide-ranging claim is a reiteration of other claims made by Riley elsewhere in his petition; it is difficult to determine what separate claim is made in Ground 23. It appears, however, that the gist of Ground 23 is that the Nevada Supreme Court's automatic review of death sentences, pursuant to NRS 177.055(2), is unconstitutional, "because the Nevada Supreme Court has never enunciated any standards for conducting its review under that section." Reply, p. 18.
The court finds that Riley has not demonstrated that his constitutional rights were violated, and that Riley has not shown that he is entitled to federal habeas corpus relief, on account of the Nevada Supreme Court's review of his case under NRS 177.055(2). Riley cites no authority — and the court knows of none — standing for the proposition that there could be constitutional error, entitling him to federal habeas corpus relief, in the Nevada Supreme Court's purported failure to adequately review his case for error under a state statute.
The court will deny habeas corpus relief with respect to Ground 23. Ground 25
In Ground 25, Riley claims that his death sentence violates his federal constitutional rights "because execution by lethal injection violates the constitutional prohibition against cruel and unusual punishments." Second Amended Petition, p. 148, lines 2-5. Ground 25 includes language asserting both that lethal injection is in all cases unconstitutional — a general challenge — and that lethal injection, conducted in the manner in which Nevada authorities intend to conduct his execution, would be unconstitutional — an as-applied challenge. See id., pp. 148-57.
In the order resolving the motion for an evidentiary hearing (docket #164), the court determined that there is a threshold issue to be resolved with respect to Ground 25: Is a claim challenging a method of execution cognizable in a federal habeas corpus action? The court ordered the parties to provide further briefing on that issue. Riley filed supplemental briefing regarding Ground 25 on September 9, 2009 (docket #175). Respondents filed their supplemental briefing on November 10, 2009 (docket #178). Riley replied on November 30, 2009 (docket #180).
The Nevada statutes provide that a sentence of death "must be inflicted by an injection of a lethal drug." NRS 176.355(1). As for the lethal injection protocol, the Nevada statutes state only that the Director of the Department of Corrections must "[s]elect the drug or combination of drugs to be used for the execution after consulting with the State Health Officer." NRS 176.355(2)(b).
Riley's general challenge of the constitutionality of lethal injection as a means of conducting his execution is, in essence, a claim that lethal injection is in all cases unconstitutional, that the Director of the Department of Corrections cannot select a drug or combination of drugs, to be used for the execution, that would result in a constitutional execution. This general challenge to lethal injection fails. In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court, on an appeal from a judgment in a civil rights action, ruled Kentucky's lethal injection protocol to be constitutional.
The Baze holding forecloses any argument that lethal injection, no matter how administered, is necessarily unconstitutional. The Baze holding demonstrates that lethal injection can be administered in a manner that does not constitute cruel and unusual punishment in violation of the Eighth Amendment. This court, therefore, rejects Riley's general challenge to execution by lethal injection.
Turning to Riley's as-applied challenge, the court concludes that such a challenge to Nevada's execution protocol is not cognizable in this federal habeas corpus action.
In Nelson v. Campbell, 541 U.S. 637 (2004), a state prisoner sentenced to death filed a civil rights action, under 42 U.S.C. § 1983, alleging that the state's proposed use of a certain procedure, not mandated by state law, to access his veins during a lethal injection would constitute cruel and unusual punishment. The U.S. Supreme Court reversed the lower courts' conclusion that the claim sounded in habeas corpus and could not be brought as a section 1983 action. The Supreme Court ruled that section 1983 was an appropriate vehicle for the prisoner to challenge the particular lethal-injection procedure prescribed by state officials. Nelson, 541 U.S. at 645. The Court stated that the prisoner's suit challenging "a particular means of effectuating a sentence of death does not directly call into question the `fact' or `validity' of the sentence itself [because by altering the lethal-injection procedure] the State can go forward with the sentence." Id. at 644. In Hill v. McDonough, 547 U.S. 573 (2006), the Court reaffirmed the principles articulated in Nelson, ruling that an as-applied challenge to lethal injection was properly brought by means of a section 1983 action. Hill 547 U.S. at 580-83.
Both Nelson and Hill suggest that a section 1983 claim is the more appropriate vehicle for an as-applied challenge to a method of execution. See also, Beardslee v. Woodford, 395 F.3d 1064, 1068-69 (9th Cir. 2005) (Condemned inmate's claim that California's lethal injection protocol violates the Eighth and First Amendments "is more properly considered as a `conditions of confinement' challenge, which is cognizable under § 1983, than as a challenge that would implicate the legality of his sentence and thus be appropriate for federal habeas review.").
It is possible — and, given the amount of time that passes before a death sentence is carried out, it may be likely — that execution protocols will change between the time when a death sentence is imposed and the time when the death sentence is carried out. Therefore, the constitutionality of an execution protocol may change after the judgment is entered imposing the death sentence. Habeas corpus law and procedure have not developed, and are not suited, for the adjudication of such issues.
This court concludes that an as-applied challenge to a method of execution is not a challenge to the constitutionality of the petitioner's custody or sentence. See 28 U.S.C. § 2254; see also Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (habeas corpus as a means of challenging a "conviction or sentence"). An as-applied challenge to a method of execution is more akin to a suit challenging the conditions of the custody, which must be brought as a civil rights action under 42 U.S.C. § 1983.
The court will, therefore, deny habeas corpus relief with respect to Ground 25, and Ground 1Q to the extent it asserts ineffective assistance of appellate counsel with respect to the issues raised in Ground 25.
Certificate of Appealability
In the event Riley appeals from this court's judgment, the court has sua sponte evaluated his claims with respect to the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c); see also Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.App.P. 22(b).
The standard for the issuance of a certificate of appealability requires a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).
The court finds that reasonable jurists could debate its resolution of the issues set forth in Grounds 1A, 1B, 1C, 8, 11, 13, and 25 of Riley's second amended habeas petition. The court therefore grants a certificate of appealability with respect to those issues. The court declines to issue a certificate of appealability with respect to Riley's remaining claims, for the reasons stated in the discussion of those claims, above.
IT IS THEREFORE ORDERED that the petitioner's second amended petition for writ of habeas corpus (docket #73) is DENIED. IT IS FURTHER ORDERED that petitioner is granted a certificate of appealability with respect to the claims made in Grounds 1A, 1B, 1C, 8, 11, 13, and 25 of his second amended petition for writ of habeas corpus (docket #73). In all other respects, petitioner is denied a certificate of appealability.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.
Dated this 20th day of September, 2010.